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Sajive v/s Prakashan

    Crl.M.C.No.114 of 1997

    Decided On, 19 July 1997

    At, High Court of Kerala


    C.C. Thomas (Addl. C.G.S.C.) For Petitioner T.V. Prabhakaran For Respondent

Judgment Text

S. Krishnan Unni, J.

The Public Prosecutor has filed this Crl. M.C. on behalf of the Superintendent of Central Excise and Customs (Preventive Unit), Kochi to cancel the bail granted to the 3rd accused in S.C. No. 119 of 1996 on the file of the Sessions Judge, Thodupuzha, as per order dated 8.1.1997 in Crl.M.P. No. 14 of 1997.

2. The Assistant Commissioner of Central Excise Preventive Unit along with his party raided room No. 102 of Hotel Hill Top in Mannur at about 11.25 am on 27.9.1996 and after search recovered 1230 grams of Hashish Oil worth Rs. 1.25 crores found in a polythene packet in a cloth pouch from the 1st accused K.M. Joseph. The 2nd accused T. Mani was also present in the room. They were immediately arrested and their statements taken. Actually, they were overpowered by the officers for which they had to use force. Accused 1 and 2 implicated the 3rd accused stating that they had come to the hotel to dispose of the contraband to a buyer from Calicut who was sent by the 3rd accused Prakashan (respondent herein). The third accused was arrested on 9.12.1996, his statement was recorded under S.67 of the N.D.P.S. Act and he was produced in the Sessions Court, Thodupuzha on 10.12.1996. He was remanded to judicial custody for 15 days. It was recorded by the learned Sessions Judge that he had not made any complaint, but the fact of arrest was not informed to his relatives and accordingly the court directed that they may be informed immediately, and he was remanded to judicial custody till 23.12.1996. The house of the 3rd accused was searched by the officers on 10.11.1996 and certain accounts were seized which showed that he had large-scale dealing in narcotic drugs. A bottle containing a semi liquid substance was recovered but ultimately the Forensic Science Laboratory reported that it was not a narcotic drug. According to the 3rd accused it was a lehya prepared by an Ayurvedic physician as a medicine for his father who was suffering from Asthma. His brother Suresh was questioned by the officials, before whom he made a statement under S.67 that his brother Prakashan was engaged in cultivation of ganja and sale of narcotic drugs.

3. By the order in Crl. M.P. No. 14 of 1997, the learned sessions judge noticed that the 3rd accused was not present when accused 1 and 2 were arrested from the hotel room, that nothing was seized from him on his arrest and that the material recovered after search of his room was not a narcotic drug, and persuaded by the above circumstances, released the 3rd accused on bail. This Crl. M.C. is filed to cancel the bail granted to the 3rd accused.

4. It was submitted by the Addl. Central Government Standing Counsel Sri. C.C. Thomas that the statement of the brother of 3rd accused and the statements made by accused 1 and 2 implicating the 3rd accused at whose instance they went to Munnar, clearly points to the role played by him in the crime. The 3rd accused was staying with the 2nd accused. They were residing in St. George Hotel, Adimaly owned by one M.U. Chacko at the time, of arrest of accused No. 2 M.U. Chacko gave statement to the officials that actually the 2nd accused had not vacated the room and subsequently at the instance of the 3rd accused an entry was made in the ledger of the hotel showing a prior date of departure. It is therefore submitted that the view of the learned Sessions Judge that there was no evidence to implicate the 3rd accused with the crime is not well-founded.

5. Learned counsel for the respondent - 3rd accused submitted that the* statement made by the 3rd accused on his arrest was retracted immediately after his arrest and that the statements of other accused and of his brother were obtained at the duress exercised by the officers and in the circumstances the bail granted by the Sessions Judge should not be revoked or cancelled.

6. It is helpful to refer to S.37(1)(b) of the N.D.P.S. Act which makes all the offences under the statute cognizable and non-bailable. The said provision reads:

"37(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) xxx. xxx xxx

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor oppose 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."

Sub-clause (ii) mentions that where the Public Prosecutor opposes the application for bail, before granting the request of the accused, the court must be satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail.

7. I regret to observe that the learned Sessions Judge's order does not show that any consideration was bestowed to the above statutory requirement before bail was granted. As I mentioned earlier, at least four persons other than the 3rd accused have made statements implicating him, namely 1st accused, 2nd accused, brother of 3rd accused and M.U. Chacko. The 3rd accused himself had made a statement which he is said to have retracted. The seizure of the accounts from his room containing entries relating to large-scale transactions connected with the narcotic drugs is an important piece of evidence, if it is proved. At this stage of allowing a request for bail, the court is not concerned with the final proof of the above facts. It has only to look into the diary statements or other evidence to see whether prima facie there was anything to show the involvement of the applicant. Whether they are genuine or not are matters that must await the trial in the case. Suffice it to say that the court could not have concluded that there was no reasonable grounds to show that the 3rd accused is not guilty of such offence. The probative value of the prosecution evidence must await the final trial in the case.

8. The second aspect is that the court must be convinced that the applicant would not repeat the offence if released on bail. It was submitted by the Editorial Central Government Standing Counsel that the 3rd accused is involved in Crime No. 56 of 1996 of Kumili Police Station for the offence under the N.D.P.S. Act and the Arms Act and he was making himself scarce to the authorities and evading arrest. It is further submitted that he has secured bail in that case also. In the above circumstances, the court could not have come to the conclusion that if released on bail, the 3rd accused is not likely to repeat this exercise. In fact, there are no reference to such requirements of law in the impugned order. The question as. t

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o the effect of retraction of confession made by 3rd accused also has to be devalued at the time of trial and may not be relevant at this juncture. The argument of respondent's counsel that the statements made by the Excise Officials are not admissible in evidence cannot be prima facie accepted in view of the fact that they are not police officers and the embargo in S.25 of the Evidence Act do not apply to such statements made under S.67 of the N.D.P.S. Act. In the circumstances, I have no hesitation to hold that the bail granted to respondent - 3rd accused must be cancelled. Accordingly, the Crl. M.C. is allowed and the bail granted to respondent - 3rd accused is cancelled. The bail bond shall stand, cancelled and he is directed to surrender before the authorities.