TMI Blog2019 (11) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... he period he was on bail, he has not committed any offence. In these circumstances, he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1) (b) of the Act. Therefore, the bail already granted to him by the learned Sessions Judge, as early as on 07.02.2019, need not be cancelled. The order passed by the learned Additional Sessions Judge granting statutory bail to the first accused, without considering the provisions contained in Section 36A(4) of the Act, was illegal - inspite of the illegality committed by the learned Additional Sessions Judge in granting statutory bail to the first accused, at this distant point of time, I am not inclined to cancel the bail granted to the first accused, especially in the absence of any material produced by the petitioner to show that complaint was filed within a period of 180 days from the date of arrest of the first accused. Petition dismissed. - Crl.M.C.Nos.7416 of 2019, 7418 of 2019, 7419 of 2019, 7423 of 2019 And 7428 of 2019 - - - Dated:- 20-11-2019 - JUSTICE R. NARAYANA PISHARADI, J. For The Petitioner : ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fifth accused revealed that he had asked the sixth accused, an autorickshaw driver, to drop the first accused at the airport. The statement of the sixth accused was recorded on 19.06.2019. His statement revealed that, as per the direction given by the fifth accused, he dropped the first accused at the airport on 26.01.2019, after collecting the flight ticket, visa and the trolley bag from the third accused. 6. The third accused appeared before the Superintendent of Customs as per the direction given by this Court and his statement was recorded. His statement revealed that he had handed over the trolley bag and visa to the sixth accused. On 30.06.2019, the third accused was arrested. Subsequently, the statement of the third accused was again recorded and it revealed that it was the seventh accused, who had handed over the trolley bag containing the hashish to him. 7. As per the orders passed on different dates, the Court of Session, Ernakulam, granted bail to accused 1, 2 and 4 to 6. The Superintendent of Customs has approached this Court with these petitions for cancellation of the bail granted to the aforesaid accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and ( ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. ( 2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 14. A plain reading of Section 37 of the Act would show that no person accused of an offence punishable under Section 19 or Section 24 or Section 27A of the Act and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application for bail. When the Public Prosecutor opposes the application, in order to grant bail, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. 18. The aforesaid principles have been laid down by the Supreme Court in Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798, Union of India v. Rattan Mallik : (2009) 2 SCC 624 and Union of India v. Niyazuddin : AIR 2017 SC 3932 . 19. I shall now examine whether the learned Sessions Judge has granted bail to the accused after recording satisfaction of the two conditions mentioned under Section 37(1) (b) of the Act. I shall also consider whether, at this stage, this Court is required to cancel the bail granted to the accused by the learned Sessions Judge . 20. The application Crl.M.C.No.7416/2019 relates to cancellation of bail granted to the second accused. 21. The reasons stated by the learned Sessions Judge for granting bail to the second accused are the following: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation against the second accused is that he had booked the flight ticket for the first accused. He had booked the flight ticket for the first accused not at the instance of the first accused but at the instance of one Ashraf @ Sharafudheen. The offence alleged against the second accused is punishable under Section 29 of the Act. Considering the nature of the act allegedly committed by the second accused, I am of the view that there are reasonable grounds for believing that he is not guilty of an offence punishable under Section 29 of the Act. There are also no materials to find that he is likely to commit any offence, while on bail. In fact, during the period he was on bail, he has not committed any offence. In these circumstances, I find that he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1) (b) of the Act. Therefore, the bail already granted to him by the learned Sessions Judge, as early as on 07.02.2019, need not be cancelled. 25. The application Crl.M.C.No.7428/2019 relates to the cancellation of bail granted to the fourth accused in the case. 26. The reasons stated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1)(b) of the Act. Therefore, it is not required to cancel the bail already granted to him by the learned Sessions Judge. 30. The application Crl.M.C.No.7423/2019 relates to cancellation of the bail granted to the fifth accused in the case. 31. The following are the reasons stated by the learned Sessions Judge for granting bail to the fifth accused. The petitioner was arrested on 26.01.2019 at Cochin International Airport and since then he has been in judicial custody. Admittedly, no narcotic product or psychotropic substance was seized from the possession of the petitioner. Hashish was seized from the possession of the 1st accused. The petitioner was arrayed as an accused only for the reason that the mobile phone number of the petitioner was saved in the mobile phone of the 1st accused. In the statement under Section 67 of the NDPS Act, accused No.1 stated that Hashish seized from him was brought to Airport for being taken to Quatar as instructed by his friends Rafik and Arish. Nothing was spoken to by the 1st accused against the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. The reason stated by the learned Sessions Judge for granting bail to the sixth accused reads as follows: The role played by the 6th accused according to the prosecution is that he being an autorickshaw driver dropped the 3rd accused to Cochin International Airport on 26.01.2019. 37. Here also, the learned Sessions Judge has not adverted to the twin conditions mentioned under Section 37(1) (b) of the Act. Learned Sessions Judge has not recorded any satisfaction of the conditions mentioned therein. On that ground, it can be found that the order granting bail to the sixth accused is illegal. 38. The sixth accused was granted bail by the learned Sessions Judge on 02.08.2019. The application for cancellation of his bail was filed only on 26.10.2019. The petitioner has no case that the sixth accused has violated any of the conditions of bail till this time while he was on bail. 39. True, the prayer for cancellation of the bail granted to the sixth accused is made not on the ground of violation of the conditions of bail but on the ground of the illegality of the order granting him bail. The alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions Judge, the offence alleged against the first accused was only under Section 20(b)(ii)B of the Act. Learned counsel would point out that, at that time, there was no allegation that the first accused had possessed any narcotic substance, which constitutes commercial quantity and therefore, the learned Additional Sessions Judge was perfectly justified in granting statutory bail to the first accused. 43. I find it difficult to accept the aforesaid submission. It may be true that the investigating officer has wrongly quoted Section 20(b(ii)B of the Act as the penal provision. However, the learned Additional Sessions Judge should have noticed that 1602 grams of hashish had been seized from the possession of the first accused. In fact, what is stated by the learned Additional Sessions Judge in the impugned order is that only 1.602 grams (not 1602 grams) of hashish was seized. This would show that the learned Additional Sessions Judge had not applied his mind while granting statutory bail to the petitioner. The learned Sessions Judge had not considered whether the quantity of the narcotic substance seized from the possession of the first accused constituted commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would qualify as a police officer or not and whether the statement recorded under Section 67 of the Act would be admissible in evidence or not, have been referred to consideration by a larger Bench of the Supreme Court (See Tofan Singh v. State of Tamil Nadu : (2013) 16 SCC 31 ). Till the decision of the larger bench of the Apex Court comes, it has to be found that the statement of a person under Section 67 of the Act is admissible in evidence. Yet, confession of a co-accused is a very weak type of evidence. Without any other materials to corroborate the statements of the accused and the co-accused recorded under Section 67 of the Act, it may not be possible to find an accused guilty of an offence under the Act (See Mohammed Fasrin v. State : AIR 2019 SC 4427 ). This is the basis on which I have reached a conclusion that there are reasonable grounds for believing that the accused 2 and 4 to 6 are not guilty of the offences alleged against them. 48. The discussion above would show that all the petitions are liable to be dismissed. 49. Consequently, the petitions are dismissed. However, I make it clear that, nothing stated in this order with regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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