Satheeswaran v. State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2022
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.No.19879 of 2022 Satheeswaran
...Petitioner
Vs.
State Rep. by:
Sub Inspector of Police, M-4 Redhills Police Station, Chennai Crime No. 1402 of 2021 ..Respondent PRAYER:
Criminal Original Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail pending trail in CC No.41 of 2022 on the file of the II Additional NDPS Court, Chennai. For Petitioner :Mr.O.Chembulingam For Respondent :Mr.A.Damodaran Additional Public Prosecutor 1/10
ORDER
The petitioner, was arrested and remanded to judicial custody on 30.08.2021 for the offences punishable under Sections 8(c) read with Section 20(b)(ii) (C), 25 and 29(1) of NDPS Act in crime No.1402 of 2021 on the file of the respondent police, seeks bail.
2. The case of the prosecution is that, based on the secret information received, the respondent police intercepted TN 67 AW 4950 TATA India Car from Ponneri to Redhils. However, the driver of the vehicle without stopping, drove the vehicle in a rash manner. Thereafter, the respondent police had intercepted the vehicle and enquired the driver one Sathish Kumar and one Pandiyan and on search, they were found in possession of 120 kgs of Ganja. Therefore, they were arrested and remanded to judicial custody.
3.The learned counsel for the petitioner submitted that the petitioner has been arrayed as A5 and he has been implicated as an accused in this case only on the confession statement of the co-accused and there is no other material evidence to connect the petitioner in the 2/10
present case. Admittedly, the contraband were seized from A4 and A6. Only on the confession statement of A1 and A4, the petitioner has been falsely implicated in this case and the petitioner was arrested only on 30.08.2021.
4.Per contra, the learned Additional Public Prosecutor submitted that, though the petitioner has implicated as an accused only on the confession statement of the co-accused, there are other materials to connect the petitioner in this case. He further submitted that all the accused persons are in joint and conscious possession of the contraband weighing about 120 kgs of ganja which is a commercial quantity. Now, the respondent completed investigation and filed final report and it is pending for trial. He further submitted that the Hon'ble Supreme Court of India repeatedly held that though the confession statement of the coaccused is inadmissible in evidence, it cannot be used for granting bail, whereas it can be used only during the trial. In support of his contention, he also relied upon the judgment of the Hon'ble Supreme Court of India held in CRIMINAL APPEAL NOS. 1001 -1002 OF 2022 as follows:
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16. Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the appellant- NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was not the only material that the appellantNCB had relied on to oppose the bail application filed by the respondent.
The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups.
who was arrested later on and the CDR details of the mobile phones of all co- accused including the respondent herein showed that they were in touch with each other.
17. Even dehors the confessional statement of the respondent and the other coaccused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.
18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he 5/10
is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the chargesheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."
3. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent.
4. Totally there are seven accused in this case and the petitioner is arrayed as A35 and he was implicated only on the confession statement of the co-accused.
5. On perusal of the confession statement of A6 revealed that, he only drove the car and A7 was sitting in the car. A1 and A4 escorted there car and therefore, there is no whisper about the petitioner's presence in the car. Except, the confession statement of A1 and A4, there is no other materials to connect the petitioner in this case. As far as 6/10
petitioner/A5 is concerned, except the confession statement of A1 and A4, there is no other material to connect him in the present case. The Hon'ble Supreme Court of India held that the confession statement of the co-accused cannot be relied upon while considering the application for bail. It is further held that, the admissions made by the respondent while in custody to the effect that he had illegally traded narcotic drugs will have to be kept aside. However, this was not the only material that the respondent had relied on to oppose the bail application. The investigation had specifically stated that it was the disclosures made by the respondent that had led them to arrive to godown of the co-accused which has resulted in the recovery of a large haul of different psychotropic substances. Whereas, in the case on hand, there is no recovery from the petitioner and only on the strength of the confession statement, the petitioner has been implicated. Therefore, the judgement relied upon by the learned Additional Public Prosecutor is not helpful to the case on hand.
6. Now, the respondent completed investigation and filed final report and the only material available as against the petitioner is the 7/10
confession statement of the co-accused and there is no other material is available to connect the petitioner in this case.
7. Considering the above facts and circumstances of the case and also considering the period of incarceration from the date of arrest, this Court is inclined to grant bail to the petitioner.
8. Accordingly, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two blood sureties, each for a like sum to the satisfaction of the learned II Additional NDPS Court, Chennai and on further conditions that:
[a] the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity. [b] the petitioner shall report before the respondent police twice daily at 10.30.a.m., and 04.30 p.m. for a period of two weeks and thereafter as and when required for interrogation. 8/10
[c] the petitioner shall not abscond either during investigation or trial.
[d] the petitioner shall not tamper with evidence or witness either during investigation or trial.
[e] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].
[f] If the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC.
25.08.2022 Sma 9/10
G.K.ILANTHIRAIYAN, J.
Sma To 1.II Additional NDPS Court, Chennai.
2.Sub Inspector of Police, M-4 Redhills Police Station, Chennai.
3.Central Prison, Puzhal.
4.The Public Prosecutor, High Court of Madras Crl.O.P.No.19879 of 2022 25.08.2022 (2/2) 10/10