IMPORTANT POINT
Acquittal of co-accused creates a presumption of innocence, requiring substantial evidence for continued detention under NDPS Act.

ORDER :

BECHU KURIAN THOMAS, J.

This bail application is filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘BNSS’).

2. Petitioner is the third accused in O.R. No.4 of 2019 of Narcotic Control Bureau, Kochi, Ernakulam registered for the offences punishable under sections 22(c), 23(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act , 1985 (for short ‘NDPS Act’).

3. According to the prosecution, pursuant to information received on 02.09.2019, the first accused was found in possession of 490 grams of methamphetamine in a hand baggage, as he was about to travel out of India in Qatar Airways flight QR 537. The investigation revealed that the third accused had handed over the bag containing the contraband articles to the second accused, who in turn, handed it over to the first accused and thus, the accused together committed the offences alleged.

4. The first and second accused were arrested earlier and, therefore, the case against them were split up and was tried as S.C.No.260 of 2020. By judgment dated 22.12.2021, the Special Court for NDPS Act cases, Manjeri acquitted the first and second accused. Since the petitioner, as the third accused, was absconding, the case against him was split up and re-numbered as S.C.No.522 of 2022. In the meantime, petitioner was arrested on 23.02.2025 and he has been in custody since then.

5. Sri.Sam Isaac Pothiyil, the learned counsel for the petitioner submitted that the offences alleged against the petitioner and the second accused are identical and, since the second accused has already been acquitted, the benefit of the said acquittal should be extended to the petitioner also. It was submitted that there are no materials to connect the petitioner with the crime and, hence, the rigour under Section 37 will stand diluted and the petitioner ought to be released on bail.

6. Sri.R.Vinu Raj, the learned Special Public Prosecutor, on the other hand, contended that the petitioner is alleged to have conspired with the other accused to commit the offence and, therefore, notwithstanding the acquittal of accused Nos.1 and 2, and hence the offence will arise. It was also submitted that a special leave to prefer an appeal against the judgment of acquittal has already been preferred as Crl.L.P.No.496 of 2023 and therefore the judgment of acquittal has not become final and hence, the petitioner cannot rely on the acquittal of co-accused.

The learned counsel further submitted that there are other independent materials to connect the petitioner with the offence of conspiracy and therefore, bail ought not to be granted.

7. I have considered the rival submissions.

8. Annexure- A1 is the judgment of acquittal in S.C.No.260 of 2020 in respect of accused Nos.1 and 2 in the same crime. Paragraphs 20 and 21 of the said judgment reads as below:-

“20. The offence alleged against the 2nd accused is that he conspired together along with first accused for exporting methamphetamine from India to Doha. It is true that from Ext.P44 series call details controlled by the mobile numbers of A2 he had contacted Al. Since the possession of the contraband articles by A1 itself is doubtful, and not proved, there is no question of entering into conspiracy by A1 and A2 for the export of the contraband articles. It is true that Ext.P14 the confession statement of A1 and Ext.P33 confession statement of A2 were marked. Those are not admissible in evidence in the light of the decision in Tofansing V. Tamil Nadu reported in 2020(6) KHC 111 wherein Hon'ble Apex court has held that officers who are invested with powers u/s 53 are police officers within the meaning of sec.25 of Evidence Act, as a result of which any confessional