Mohammed Navab Shareef vs Station House Officer Kalpeni Police Station

K.Haripal, J

This is the third application successively filed by the petitioner under Section 439 of the Code of Criminal Procedure in Crime No. 3/2020 of Kalpeni

police station in Union Territory of Lakshadweep, where he, along with the first accused, faces allegations under Section 20(b)(ii)(B) read with 29 of

the NDPS Act. The allegation is that on 08.05.2021, while the first accused was disembarking from the ship to the island, the Sub Inspector

intercepted him and found carrying 2.100 kilograms of ganja which was being transported from mainland to the island. The said person was arrested

along with the contraband. During the course of investigation, it came out that the petitioner, the second accused was actively playing behind the

curtain; the phone records of the first accused clearly indicated that the petitioner was closely following the movements of the first accused; detailed

call records and voice clips of the petitioner indicated that he was tracking the movements of the first accused and thus with the aid of Section 29 of

the NDPS Act, he was also arrested on 08.05.2021 and since then he is in judicial custody. His earlier applications were dismissed by this Court.

The learned counsel for the petitioner submits that the first accused from whom the contraband was seized has already been granted statutory bail.

The charge sheet was laid immediately after his release on bail and to deny him the very same benefit, the final report was filed immediately

thereafter, there is absolutely nothing to infer the involvement of the petitioner in the alleged commission of crime. The petitioner is totally innocent and

has been arrayed as the second accused due to personal animosity of the Investigating Officer, simply for the reason that he had involved in a similar

case in Palakkad; even though Section 27A of the NDPS Act is also incorporated there is not even a whisper regarding the money transactions

allegedly done by the petitioner. There is also no material to infer conspiracy allegedly plotted between the accused. The learned counsel also pointed

out that only in the First Information Report, the seizure has been mentioned, he has not been supplied copy of the seizure mahazar which is a very

crucial document to prove the allegations. Even though it is stated that voice samples were collected and CDs were forwarded, opinion regarding the

culpability of the petitioner was formed by the police without getting result of examination of voice samples. Similarly, the learned counsel pointed out

that the big shopper or the cardboard which were allegedly used for wrapping 25 packets of contraband are not forthcoming. Therefore, the learned

counsel fervently pleaded for granting him bail.

The learned Standing Counsel for the Lakshadweep Administration strongly opposed the application. He also filed a statement. According to him,

the contraband was seized observing all legal formalities. The crime was registered on 08.05.2021 and the first accused was produced before the

Executive Magistrate on 09.05.2021. During his interrogation in police custody, it came out that the petitioner was behind the entire illegal deal. It also

came out that the petitioner had transported ganja earlier also, at his instance, the first accused had sold ganja for an approximate amount of Rs.

3,00,000/-and the amount was credited through some other account. The petitioner was arrested from Androth island on 08.05.2021 and evidence has

been received regarding his direct and indirect financing in the illegal deal, concealment and import inter-state and transshipment of narcotic drugs.

The petitioner has serious criminal antecedents, he was arrested in a ganja case in Olvakkode in Palakkad district with 1.5 kilograms of ganja and the

case is now pending before the Judicial First Class Magistrate Court â€" II, Palakkad, he has violated the bail conditions and therefore, he is not

entitled to be released on bail.

During the course of hearing, since the learned counsel for the petitioner had submitted that no seizure mahazar was prepared, nor attestation of

independent witnesses were obtained for the alleged seizure, the learned Standing Counsel was directed to ascertain the correctness of the version.

Then the learned counsel produced the copy of property seizure memo and pointed out that independent witnesses including the Sub Divisional Officer

have attested the seizure mahazar. According to the learned Standing Counsel, in all Union Territories that is the practice being followed, that separate

seizure mahazars are not prepared in such cases. But taking cue from this property seizure memo which bears the signature of witness No. 8, who is

the Sub Divisional Officer, the learned counsel for the petitioner contradicted the endorsement in the FIR where the Sub Inspector himself had

proceeded to search the body of the petitioner, as if the first accused had waived his right to be examined in the presence of a gazetted officer. So the

learned counsel submitted that if the Sub Divisional Officer was present at the disembarkation point, his services would have been taken for the body

search without the Sub Inspector himself venturing to conduct the search in the absence of a gazetted officer. I do not want to make any comment on

this aspect or on the claim of the prosecution that there is evidence for the direct and indirect funding by the petitioner in the illegal deal. The petitioner

is in judicial custody for the last nearly 240 days. If this Court makes any observation regarding the rival claims, that may likely to prejudice the case of

the parties.

Therefore, leaving open the rival contentions and considering the fact that the petitioner is in judicial custody for the last 240 days, he shall be

released on bail despite the fact that there is allegation that he has violated the bail condition in the Palakkad case.

The petitioner shall be released on bail on the followings conditions:-

i) The petitioner shall execute a bond for Rs. 50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the

jurisdictional court;

ii) He shall not try to contact or influence the witnesses or tamper with the evidence;

iii) He shall not involve in any crime during the bail period;

iv) He shall surrender his passport before the jurisdictional court within ten days from the date of release; if he does not possess a passport, an undertaking shall be

filed to that effect;

v) He shall appear before the trial court as and when required;

vi) The petitioner shall strictly abide the various

guidelines issued by the Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;

v) If any of the above conditions are violated by the petitioner, the jurisdictional Court will be at liberty to cancel the bail in accordance with law.

This bail application is allowed as above.