Mohammed Irshad vs State Of Kerala

K.Haripal, J

These are applications for regular bail moved by accused Nos.11, 1, 2, 8, 4 and 6 respectively in crime No.525/2020 of Malappuram police station, which was registered on 24.09.2020, after seizing 318 kg of ganja from the immediate

possession of accused Nos.1 to 5 by the Inspector of Police, who is the Station House Officer of Malappuram police station.

The sum and substance of the prosecution allegation is that on 24.09.2020 at about 1.25 a.m. in the night, the Inspector and party including the Sub Inspector were engaged in night patrol duty. At about 2.30 a.m., at a place by name

Ponmala, one Yaseen Muhammed approached them and said that his pick-up van KL-10-AP-3484 was taken by one Abdul Rahman for the purpose of transporting onion, that he suspects that it was unauthorisedly taken out of the State and

might have been misused for illegal purposes and requested for taking steps for retrieving the vehicle. While the police party were checking vehicles on the Perinthalmanna-Kottakkal road, at Chapanangadi School padi, in front of the High

School, the said pick-up van came from Perinthalmanna to Kottakkal side. He signalled the vehicle to be stopped. Behind it an Innova car, MH-12-KN-9226 also came. When the pick-up van was stopped, the Innova car also was stopped and

tried to be taken back. When the police intercepted, three persons, one from the driver seat and two persons sitting in the centre seat of the car, opened the right doors and ran away from the place. Three persons who travelled in the Innova

car were not allowed to go out and those three persons and two persons found in the pick-up van were intercepted; on inspection of the vehicles 21 kg of ganja was found transported in the Innova car, whereas 297 kg of ganja was found

concealed among the onion bags in the pick-up van. Thus accused Nos.1 and 2 who were travelling in the pick-up van and 3 to 5 who were travelling in the Innova car were arrested from the place. From their version, it could be revealed that

the persons who ran away from the place were accused Nos.6 to 8. Thus after seizing 318 kg of ganja and the vehicles, that crime was registered and during the course of investigation others were also arrested for the case. The following

table will give a general idea about the accused persons, their rank and date of arrest.

           Case No.         Name & Rank                        Date of Arrest                        Remarks

        Â

       BA.9161/20    Naseer - A11                           14.11.2020                  Funded and harboured

                                                                                                    Â

           A6 to A8

       BA.1455/21     Mohammed Irshad -A1             24.09.2020}                Arrested from the spot

                                                                                                       Â

           Shahul Hameed -A2 24.09.2020} Â

3.        BA.4495/21    Shibil N.V - A8                        07.10.2020                   Escaped from the spot

       BA.4637/21     Najeeb â€" A4                             24.09.2020                   Arrested from the spot

       BA.4665/21    Abdul Jabir P.K.-A6                 07.10.2020                   Escaped from the spot

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Now it has come out that after completion of investigation, charge sheet has already been laid before the Special Court for NDPS Act Cases, Manjeri where it is pending as SC No.397/2021. The petitioners have sought for their release on

bail. Petitioners face allegations under Sections 20(b)(ii)(C), 27A and 29 of the Narcotic Drugs and Psychotropic Substances, Act, 1985, hereinafter referred to as the NDPS Act, for having illegally found in possession or transportation of 318

kg of ganja.

I heard respective counsel for the petitioners. The learned counsel for the petitioners wanted to say that all the petitioners are innocent, that they have been falsely implicated. It is further submitted that the final report is laid and the

continued detention of the petitioners is not necessary.

Regarding the presence of the police at the said place, Chapanangadi, and interception of the vehicles, the learned counsel for the 4th accused, who is the petitioner in BA No.4637/2021 submitted that it is highly artificial that at odd hours at

2.30 a.m. the said Yaseen Muhammed had made a complaint before the SHO, that too at a remote area, which is highly improbable. According to the learned counsel, the timing is very important; even though the police might have received

prior information about the illegal transport of the items, they did not record the information before initiating the crime. Sections 41 and 42 of the NDPS Act are not complied with and that alone is sufficient to disbelieve the entire version of the

prosecution. In this connection, the learned counsel also relied on the decisions reported in Muhammed Ameen and another v. Narcotic Control Bureau, Cochin [2020 (1) KHC 645] and Basant Balram v. State of Kerala [2019 (1) KLT 523].

The learned counsel for the petitioner in BA No.9161/2020 submitted that he is arrayed as the 11th accused and his case has to be considered on a different footing. According to the learned counsel, the prosecution has no case that he was

present anywhere at the place of occurrence or that he had any role in the alleged transport of the contraband. According to him, he was arrested on 14.11.2020; between 07.10.2020 and 15.11.2020, that is before filing a report incorporating

Section 27A of the NDPS Act, the prosecution did not have a case that he had played any role at all in the commission of the crime. According to the learned counsel the rigour under Section 37 will not come into play. His name was

incorporated at a later stage and is the result of a second thought. No specific role is attributed against him. Sections 27A and 29 of the NDPS Act cannot be attracted so as to rope in the petitioner. According to the learned counsel, except the

final assertion, nothing is there to attract offences under Sections 27A and 29 of the NDPS Act against him.

I heard the learned Senior Public Prosecutor also and perused the material documents of investigation and also the statement filed by the Investigating Officer.

According to the learned Senior Public Prosecutor, it was a chance recovery, during night patrolling the Investigating Officer had come across the said Yaseen Muhammed on the way and therefore there was no occasion to record the

information received by them. Regarding the role of accused Nos.1 to 8, the learned Public Prosecutor has no doubt that accused Nos.1 to 5 were arrested from the spot along with the contraband, that the names of accused Nos.1 to 8 are

incorporated in the FIR itself, whereas there are specific materials to say that the other accused had also played vital roles in the commission of the crime. According to the learned Senior Public Prosecutor, the 11th accused had funded

procurement of the contraband and also harboured accused Nos.6 to 8; there are materials to say that he was also part of the conspiracy hatched at KTL Tourist Home, Karipur and the said transport of so much quantity of ganja was the

result of the conspiracy hatched by them. According to the learned Senior Public Prosecutor, it was the second largest ganja haul in the State and therefore, the gravity of the offence has to be considered.

The learned counsel for the accused, that is petitioners in BA.1455/2021 had highlighted that the second accused who is the second petitioner was infected with Covid 19 thrice and he has serious medical issues, that he is not getting proper

medical care from the jail and there are post covid complications which cannot be addressed by the jail authorities and therefore he sought at least interim bail for the second accused. On the specific request of the learned counsel, a report

was called from the Superintendent of Sub Jail, Perinthalmanna. The Superintendent has given report dated 21.07.2021, where it is stated that the second accused was infected with Covid thrice, that is on 09.10.2020, 15.04.2021 and

12.06.2021. Later, he developed some abdominal difficulties and after routine check up by the Jail Medical Officer, there is a direction to consult Surgery Gastro expert for which he will be taken to Government Medical College, Manjeri. That

means, even though he has some post covid complications, it is certain, as submitted by the learned Public Prosecutor, that the jail officials are capable of addressing the same and taking care of the situation. I do not think that any special

treatment is required at this stage to grant him interim bail.

As noticed earlier, this is one of the biggest ganja hauls taken place in Kerala. On 24.09.2020 318 kg of ganja was seized by police from accused Nos.1 to 8; accused Nos.1 to 5 were arrested from the spot itself. Accused Nos.1 and 2

were found transporting onion in pick-up van No.KL-10-AP-3484. They were intercepted and 297 kg of ganja was found concealed along with onion bags in the pick-up van. The said Innova car MH-12-KN-9226 was following the pick-up

van. From the car 21 kg of ganja was seized and accused Nos.3 to 5 were travelling in the car. Accused Nos.1 to 5 were arrested from the spot itself and a contemporaneous seizure mahazar was prepared which indicates that accused Nos.1

to 5 were arrested when so much quantity of ganja was seized from the two vehicles.

The names of accused 6 to 8 are very much in the FIR itself. Of course, three persons were found running out of the car immediately after the police had intercepted. Their names were related to the police by the accused persons who

were arrested. They were later arrested from different places. So the complicity of accused Nos.1 to 8 cannot be disputed at all.

Turning to the plea by the 11th accused, who is the petitioner in BA.9161/2020, I do not think that it requires any special attention at this stage. He has been implicated on the basis of the materials collected during investigation. The learned

Public Prosecutor has submitted that there are telephone call details, bank transactions etc. to find his complicity also. It is true that he may not have any antecedents. But at this stage, sitting on the question as to whether the petitioners are

entitled to be released on bail, this Court is not expected to conduct a mini trial. Suffice it to say that there are prima facie materials to find that A11 also had played vital role in transporting the contraband and harbouring the accused persons

who had run away from the place. There are also materials to say that he was part of the conspiracy following which so much quantity of ganja was transported from Andhra Pradesh to Kerala.

I do not have any doubt in my mind that the embargo under Section 37 of the NDPS Act is very much attracted. The learned Senior Public Prosecutor has seriously opposed the applications. Secondly, at least at this stage, there are no

materials to say that the petitioners are not guilty. After rushing through the records, there are reasonable grounds to assume the involvement of these petitioners in the crime. This is a very serious crime. So much quantity of ganja has been

seized red handed. Kerala has become a hub for distribution of narcotic substances and the seriousness of the matter cannot be underestimated.

I do not find any reason to grant bail to the petitioners at this stage. The medical concerns raised by the 2nd accused should be appropriately addressed by the jail authorities and if any further directions are required, I am sure that the

learned Special Judge for NDPS Act cases, Manjeri will monitor the situation and will give appropriate directions to the jail authorities. Subject to this the applications are dismissed.