Proximity to contraband and communication patterns are critical in determining bail eligibility under the NDPS Act.

COMMON ORDER

Dated this the 19th day of February, 2021 APPLICATIONS FOR REGULAR BAIL The applicant in B.A. No.9032/2020 is the 4th accused, while the applicant in B.A. No.524/2021 is the 2nd accused in Crime No.50/2020 of Excise Enforcement and Anti Narcotic Special Squad, Palakkad, for having allegedly committed offences punishable under Sections 20 (b) (ii) (C), 29 and 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 , for short the (“NDPS Act”). The prosecution case, in brief, is this:

2. On 22.09.2020, on getting information that a lorry was being piloted by a car and were transporting ganja, the Excise Circle Inspector intercepted a lorry bearing registration No.TN-39BW-6339 and on inspection recovered 65.70 Kgs of ganja. A1 was the driver, while A2 was the cleaner, who was assisting him. They were immediately arrested. A Chevrolet Car bearing Registration No. KL-8-BA-2197 was allegedly piloting the lorry and was found with the lorry and that too was intercepted and on questioning the occupants of the lorry, who are accused Nos. 3 & 4, it was revealed that they too were involved in the alleged transportation of ganja, although no contraband articles were seized from the car. The 4th accused claims that he was only the driver of the car, which is owned by one Mr.Binoy and as instructed by Binoy, he had gone to pick up the 3rd accused from Coimbatore and therefore, he did not know anything about the transporting of ganja in the lorry and he was also not piloting the lorry as alleged. There was no contraband seized from the lorry or from the possession of the 4th accused and therefore he claims to be innocent and submits that there are no materials which would prove his complicity in the matter and therefore there are reasonable grounds to believe that he is innocent. And, hence, he may be released on bail.

3. As far as the 2nd accused is concerned, he claims to be the cleaner of the lorry and he too states that he is totally ignorant about the storing of narcotic drugs inside the chamber of the lorry. It is admitted that he was in that lorry and was accompanying the driver. But, he states that he has no criminal antecedents and that he is not aware of the transportation of the lorry and therefore he too submits that there is no material to prove his complicity and there are reasonable grounds to believe that he is not guilty and since he did not have any antecedents, there are no reasonable grounds to believe that he would commit offences of similar nature, if he is released on bail. Under the circumstances, the applicants seek regular bail since they have been in custody from the date of interception.

4. Heard the learned counsel appearing for the applicants and the learned Public Prosecutor. The learned Public Prosecutor submits that there are sufficient materials to indicate the involvement of all the four persons who were arrested on the date of occurrence. It is stated that there were constant phone calls between the driver of the lorry and the 3rd accused, who was travelling in the car. 34 calls were made between them. It is also established that the lorry and the car were travelling together, which also indicates that they were in close proximity and there is every possibility that they were consciously transporting ganja in the lorry.

5. Under the circumstances, the learned Public Prosecutor states that there are no grounds to believe that the 4th accused was only a driver and that the 2nd accused was only a cleaner and that they were not aware of the alleged transportation of ganja. Even if what is stated by A2 and A4 regarding their ignorance of the contraband being concealed in the lorry, it is a matter of evidence which needs to be considered during trial. And, hence, for the purpose of bail and for the purpose of the embargo under Section 37 (I) (ii) b of the NDPS Act, there are no grounds to find that the applicants are not guilty and hence, the bail applications may be dismissed submits the learn