Anil T.K. vs State of Kerala

K. Abraham Mathew, J.—The applicant in both these cases is one and the same person. He is the second accused in NDPS Crime No. 17 of 2013 of Narcotics Enforcement Squad, Adimaly and the sole accused in NDPS Crime No. 1 of 2014 of Excise Enforcement and Anti narcotic Squad, Idukki. Though the transactions in both these cases are independent, the developments that took place after the registration of the cases make it necessary to consider them together.

On 29.11.2013 at about 1 p.m., the Excise Circle Inspector, Narcotic Enforcement Squad, Adimaly found the first accused transporting 6 Kg of ganja oil in a jeep. He was arrested, the contraband was seized and the case was registered for the offence under Section 20(b)(ii) read with Section 8 of the NDPS Act. In the course of the investigation his confession statement was recorded. According to the prosecution, he disclosed that the applicant also was involved in the commission of the crime. So the investigating officer sent a report to the court concerned stating that the applicant has been arrayed as the second accused.

On 19.1.2014 at about 7 in the morning Circle Inspector of Excise, Excise Enforcement & Anti narcotic Special Squad, and Inspector, Excise Intelligence and Investigation Bureau, Idukki along with some excise officers were on patrol duty, when at Archanapadi on the Rajakkad-Poopara road, they saw the applicant coming from Rajakkad direction riding the motorcycle bearing No. KL-06B 3906. They signalled him to stop. But he just sped away. The Excise Officers went in pursuit of him. When he reached the property in which he was constructing a house, he abandoned the vehicle and took to his heels. The Excise Officers searched the motorcycle and found 1.052 Kg of hashish concealed in its tool box. They seized the vehicle as well as the contraband and registered the case for the offence under Section 20(b)(ii)(C) read with Section 8 of the NDPS Act.

In NDPS Crime No. 1 of 2014 the applicant filed B.A. No. 1266 of 2014 under Section 438 Cr.P.C. By the order passed on 28.2.2014 this court dismissed the application.

Ordinarily a second Bail Application is not maintainable unless there is some subsequent development. The change of circumstance pleaded in the second application is that the Excise Commissioner forwarded to the Joint Commissioner of Excise for enquiry a complaint sent to him by the brothers and close relatives of the applicant alleging that the accusation against him is false and the applicant bonafide believes that the enquiry would reveal that he was falsely implicated in the cases. It is pertinent to note that the applicant had a belief that the report of the enquiry would end in his favour. But that cannot be a ground to maintain a second bail application. An accused in any case may cause a complaint to be sent to the superior officers of the investigating officer alleging his false implication to enable him to file a second bail application. On this ground alone this application could be dismissed.

But records have been produced to show that there was an enquiry by the Joint Excise Commissioner and later the investigation was handed over to a superior officer and he conducted investigation in the cases. In the midst of the second investigation the investigation has been ordered to be handed over to the Crime Branch of the Police (Vide Order No. 74039/M3/2014 Home dated 20.9.2014).

To decide on a bail application, the only materials the court can take into consideration are those collected by the investigating officer. The Joint Excise Commissioner did not conduct any investigation under the Cr.P.C. He only conducted a departmental enquiry. Strictly speaking his report does not require any consideration. But in the peculiar circumstances of the case, I shall consider it also.

As noted above, the motorcycle on which the accused was allegedly carrying the contraband article was bearing registration No. KL-06B/3906. The RC particulars obtained from the office of the Joint RTO, Vandiperiyar revealed that that registration number was of an autorickshaw, which means that the registration number exhibited on the motorcycle was false.

When the investigation was being conducted by the Circle Inspector of Excise two brothers of the applicant and some of their close relatives sent a complaint to the Excise Commissioner stating that the applicant was falsely implicated in the cases because he refused to give bribe to the Excise Circle Inspector and others who had demanded huge amount from the applicant on the allegation that he was selling liquor in his hotel at Rajakkad. The Joint Excise Commissioner conducted an enquiry, a copy of the report of which has been marked Annexure-C. In the report it is stated that the motorcycle on which the applicant was allegedly carrying the contraband was got inspected by the Mechanical Engineer in the Excise Department and it was found that it was not in a running condition. He has made the following observations in the report: There is evidence to prove that the applicant did not learn driving and it was impossible for him to escape from the property in which he was constructing a house as there was a fence on the boundary of the property; the applicant was not identified as the person who was found riding the motorcycle; the mahazar seen in the case diary is a fabricated document; even the signatures of the independent witnesses are forged signatures. He came to the conclusion that the applicant was falsely implicated in the case and detailed enquiry was necessary to unearth the truth.

Meanwhile, the Excise Circle Inspector who detected the offence retried from service. He and a stranger sent complaints to the Excise Commissioner alleging that the attempt of the Joint Excise Commissioner was to thwart the investigation and his report is false. The Excise Commissioner thereupon entrusted the investigation to Additional Excise Commissioner (Enforcement). He conducted a detailed investigation, in the course of which he recorded statements of the persons who allegedly gave statements to the Joint Excise Commissioner to the effect that the allegations against the applicant were false.

The evidence collected by the first and second investigating officers are the materials available in the case diary.

The Excise Officers who detected the offence saw a person going along the Rajakkad-Poopara Public Road riding the motorcycle bearing No. KL-06/B-3906. He did not stop in spite of the signal shown to him to stop. He was not wearing a helmet. The incident happened just before 8 in the morning. So the officers could have easily identified the rider of the motorcycle. That apart two of the Excise Officers who were present when the offence was detected had inspected the hotel of the applicant several times on the allegation that he used to sell liquor at the hotel. So they had acquaintance with him. They could have easily identified him.

One of the witnesses examined by the investigating officers went to the applicant''s hotel in the morning to meet him as he had been asked by the applicant to do some work in the property in which he was constructing a house. But the applicant was absent in the hotel. The witness was waiting in the property mentioned above, when he saw the applicant reaching the property riding a motorcycle and the Excise Officers following him in two department vehicles; the applicant escaped from the place after abandoning the motorcycle in his property. An immediate neighbour of the applicant also claims to have seen the applicant reaching the place of occurrence on a motorcycle and taking to his heels after abandoning the motorcycle. Both these persons are the witnesses in the mahazar prepared by the Excise Officers for the seizure of the contraband article.

Evidence has been collected by the Investigating Officers to the effect that at about 5.30 in the evening on the date of occurrence the applicant was treated at a hospital as he had sprain at the ankle of his leg.

The case diary reveals that the applicant has been absconding since the date of incident.

The materials relied on the prosecution prima facie reveal the complicity of the applicant.

The Joint Excise Commissioner, who conducted the departmental enquiry would say that the witnesses had not given statements implicating the applicant. In the investigation conducted by the second investigating officer it is revealed that the Joint Excise Commissioner accused the Excise Officers who gave statements to the investigating officer that they had planted evidence against the applicant. The independent mahazar witnesses also have revealed that the statements allegedly given by them to the Joint Excise Commissioner are not true. Evidence has been collected to the effect that on 3.5.2014 the Joint Excise Commissioner visited the place of occurrence i.e., the property of the applicant in the car bearing registration No. KL-6E/6116 belonging to the applicant. Even the name of the driver of the car finds a place in his statement. The statement has been given by a witness indicates that there has been friendship between the Joint Excise Commissioner and the applicant since the former was posted at Nedumkandom as Circle Inspector of Excise.

I do not propose to make any comments about the enquiry report submitted by the Joint Excise Commissioner as I am disposing of these applications only on the basis of the materials collected during the investigation by the two investigating officers. But I cannot ignore the fact that he got the motorcycle involved in the incident inspected by an engineer of the department. He had known that the vehicle had been produced before the court concerned and the court entrusted the vehicle to the office of the department for safe custody. So it was a property in the custody of the court. It was without the permission of the court Sri. K. Mohanan, Joint Excise Commissioner got the vehicle inspected by the engineer. This amounted to interference with the administration of justice, for which he should be taken to task. The Special Judge of the NDPS Court, Thodupuzha will initiate appropriate action against him for his misconduct.

Since the investigation in NDPS Crime No. 1 of 2014 reveals that the applicant is involved in the commission of the offence, it is not at all proper to grant him anticipatory bail. The complaint sent by his brothers and the subsequent enquiry have helped him avoid arrest for 9 months. This has certainly affected the effective investigation of the case. His arrest and detention is necessary for effective investigation. Bail Application No. 3142 of 2014 filed in NDPS Crime 1 of 2014 is liable to be dismissed.

Coming to the incident involved in B.A. No. 3014 of 2014, the allegation is that on 29.11.2013 the Excise Officers seized 6 Kg of ganja oil from the custody of the first accused while he was transporting it in a jeep. The petitioner was made the second accused about two months after the incident. It is submitted that he was made an accused on the basis of a statement made by the first accused. The statement was recorded within a few days after the arrest of the first accused. He disclosed that on a day in or about June, 2011 the petitioner manufactured ganja oil in a property situated at Salyampara. The first accused and a few others also were involved in it.

The incident of 2011 narrated in the confession statement of the first accused and the incident of 2013 involved in this case do not appear to be part of the same transaction. There is no allegation of conspiracy also. So, prima facie, the involvement of the applicant is doubtful. As the only question arising for consideration in this proceedings is the entitlement of the applicant to bail, I have to either allow or dismiss it, there is no other option. Having regard to the facts of the case, I am inclined to grant the prayer of the applicant to anticipatory bail. It is made clear that the investigating officer, if he thinks it fit, may register a case on the basis of the incident alleged to have taken place in 2011. If a case is so registered, this order will cease to be in force and the applicant will not be entitled to the benefit of this order.

In the result, B.A. No. 3014 of 2014 is allowed.

If the applicant is arrested by the authorities concerned, he shall be released on bail on his executing a bond for Rs. 1,00,000/- (Rupees one lakh only) with three solvent sureties each for the like sum.

He shall appear before the investigating officer as and when he is required by him.

He shall not commit any offence under the Abkari Act or the NDPS Act while he is on bail.

He shall not intimidate or attempt to influence the witnesses.

He shall surrender his passport within three days of his arrest and if he does not have one he shall file an affidavit to that effect before the investigating officer within three days of his arrest.

He shall not leave the district of Idukki except with the previous permission of the investigating officer or the court concerned, as the case may be.

B.A. No. 3142 of 2014 is dismissed.