High Court · 2025

CRL OP(MD). No.22372 of 2024BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction )Date : 21/01/2025PRESENTThe HONOURABLE MR. JUSTICE N.ANAND VENKATESHCRL OP(MD). No.22372 of 2024Rasu @ Selvaraj,S/o.Selladurai, No.3/24 North Street, A Maruthappapuram, Nettur,Tirunelveli 627854.. ... Petitioner/Accused No.6 VsThe State of Tamil Nadu,Rep by the Inspector of Police, Tenkasi Police Station, Tenkasi District. In Crime No.582/2023.. ... Respondent/Complainant For Petitioner : Mr.Siva Suria Narayanan.S, Advocate. For Respondent : Mr.S.Ravi, Additional Public Prosecutor1/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 2024 PETITION FOR BAIL Under Sec.483 of B.N.S.S. U/s 439 of Cr.P.C. PRAYER :- For Bail in Crime No.582/2023 on the file of the respondent police.ORDER : The Court made the following order :- The petitioner / A6, who was arrested and remanded to judicial custody on21.08.2024 and was facing trial for the offences under Sections 8(c) r/w 20(b)(ii) (C) ofNDPS Act in C.C.No.170 of 2024 on the file of the learned Principal Special Judge forTrial of Narcotic Drugs and Psychotropic Substances Act Cases, Madurai inconnection with Crime No.582 of 2023 on the file of the respondent Police, seeks bail.2. The case of the prosecution is that on 29.12.2023, the Sub Inspector of Police,Tenkasi Police Station, received a secret information to the effect that a white colourBolero car was carrying huge quantity of ganja and it is being transported. Based onthis information, it was recorded in the general diary and the superior officer wasinformed and the Police team went to the spot. Near Ayyapuram Junction at about05.30 hours, the car was identified and 22 kgs of ganja was seized from the vehicle.Accused Nos.1 to 5 travelled in that vehicle and they were arrested and ganja wasseized. There are totally 11 accused persons in this case and the petitioner has been2/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 2024arrayed as Accused No.6. The main allegation that has been put against thepetitioner is that he along with Accused Nos.8, 9, 10 and 11 had abated thecommission of crime and hence, the petitioner has been charged for the offence underSection 8 (c) r/w 20(b)(i)(c) and Section 29(1) of the NDPS Act.3. The respondent has filed a counter affidavit and has taken a stand that thispetitioner was arrayed as an accused based on the confession statement recordedfrom the other accused persons. That apart, the petitioner is said to have been inregular contact with Accused No.1 and had called Accused No.1 nearly 135 times. Itis further mentioned in the counter that the bail application filed by Accused Nos.7, 9and 10 was already dismissed by this Court and time frame was fixed for thecompletion of the case and the petitioner is also similarly placed and therefore, thepetitioner is not entitled for grant of bail. A stand has been taken to the effect that thetwin conditions under Section 37 of the NDPS Act has not been satisfied. 4. The learned Additional Public Prosecutor appearing for the respondentPolice submitted that there are eighteen previous cases against the petitioner, out ofwhich, one case is for offence under the NDPS Act. He further submitted that thereare sufficient materials available in terms of the confession of the co-accused and the3/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 2024CDR details collected by the Investigation Officer would show that the petitioner wasin regular contact with Accused No.1 and the petitioner along with other accusedpersons have abated the commission of crime. He further submitted that due tooversight, the CDR details and the statements recorded from the witnesses was notfiled along with the Police report and hence, steps are being taken to file thesematerials before the trial Court. Accordingly, the learned Additional PublicProsecutor sought for dismissal of the bail application.5. The learned counsel appearing for the petitioner submitted that the onlycharge against the petitioner is that the petitioner along with other accused personshas abated the commission of crime. He further submitted that the Police reportalong with the materials that were filed by the respondent Police does not have evenan iota of evidence against the petitioner in order to substantiate the charge ofabatement. He further submitted that the petitioner has been falsely implicated inthis case and that the petitioner has suffered incarceration in this case from21.08.2024. It was further brought to the notice of this Court that the petitioner hasfiled a discharge petition before the trial Court and the same is pending.6. This Court has carefully considered the submissions made on either side and4/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 2024the materials available on record.7. The main charge against the petitioner is that he has abated the commissionof crime and this petitioner along with Accused Nos.8, 9, 10 and 11 are said to havejoined with the other accused persons in the commission of crime and had helpedAccused Nos.1 to 5 in procuring the ganja. 8. In the counter affidavit, it has been stated that the confession statementrecorded from the accused persons implicated this petitioner. That apart, thispetitioner was in continuous contact with the prime accused / A1 and he contactedover phone for nearly 135 times. 9. On carefully reading the final report and also 161 statements recorded fromthe witnesses and the documents that have been filed along with the final report, thisCourt finds that there is not even an iota of material to show that this petitioner wasin continuous contact with the prime accused. If the petitioner has contacted AccusedNo.1 regularly and CDR particulars are available, it is not known as to why theInvestigation Officer has not recorded the statement of the witnesses and has not filedthe CDR particulars along with the final report. Only if those materials are available,5/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 2024the very charge against the petitioner can be substantiated. In the absence of thesame, what is available is only ipse dixit of the Investigation Officer and nothingmore. 10. The learned Additional Public Prosecutor appearing for the respondentPolice submitted that there is lapse on the part of the Investigation Officer in notfiling the 161 statement that was recorded from the Nodal Officer and in not filing theCDR Particulars. In the considered view of this Court, this is a serious lapse on thepart of the Investigation Officer. If the Investigation Officer had really recorded thestatement of the Nodal officers and collected the CDR Particulars, nothing preventedthe Investigation Officer from filing these materials along with the police report. Ifthose materials are not filed along with the police report, the very charge against thepetitioner cannot be established. Therefore, it defies reasoning as to why thesematerials were not filed along with the police report. Either the Investigation Officerdoes not know how to investigate a case of this nature and file a proper police reportor the Investigation Officer has intentionally not filed the 161 statement recordedfrom the witnesses and in which case, serious action has to be initiated against theInvestigating Officer. 6/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 202411. As on today, this Court finds that the petitioner has a strong and arguablecase and hence, this Court finds that the twin conditions under Section 37 of theNDPS Act has been satisfied. 12. The learned Additional Public Prosecutor submitted that the case of thepetitioner is in line with the case of Accused Nos.7, 9 and 10 whose bail applicationswere dismissed by this Court. It is quite unfortunate that the materials that wereplaced before this Court in this bail application was not available when the bailapplication of the other accused persons were considered. Therefore, withoutconsidering these materials, if the bail application of the other accused personssimilarly placed has been dismissed, that cannot be cited as a precedent in this case. 13. The observations that have been made in this bail order will not have anybearing while dealing with the case on merits. If really the statements have beenrecorded from the Nodal Officers and CDR particulars have also been collected,nothing will prevent the prosecution from filing these materials before the Court inorder to substantiate the case. This order will not come in the way of the prosecutionto place relevant materials before the Court considering the fact that the offenceinvolved is under the NDPS Act. 7/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 202414. In the light of the discussion and considering the fact that the petitioner hassuffered incarceration from 21.08.2024 and taking note of the previous cases againstthe petitioner, this Court is inclined to grant bail to the petitioner subject to thefollowing conditions.15. Accordingly, the criminal original petition is ordered and the petitioner isordered to be released on bail on executing a bond for a sum of Rs.10,000/- (Rupeesten thousand only) with two sureties, each for a like sum to the satisfaction of thelearned Principal Special Judge for Trial of Narcotic Drugs and Psychotropic ActCases, Madurai and on further conditions that:- [a] the sureties shall affix their photographs and Left Thumb Impression in thesurety bond and the Magistrate may obtain a copy of their Aadhar card or Bank passBook to ensure their identity. [b] the petitioner shall report before the learned I Additional Special Court for NDPSAct Cases, Madurai daily at 10.30 a.m. apart from the hearing dates until furtherorders.[c] the petitioner shall not tamper with evidence or witness either duringinvestigation or trial.8/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 2024 [d] the petitioner shall not abscond either during investigation or trial. [e] On breach of any of the aforesaid conditions, the learned Magistrate/TrialCourt is entitled to take appropriate action against the petitioner in accordance withlaw as if the conditions have been imposed and the petitioner released on bail by thelearned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Courtin P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].[f] If the accused thereafter absconds, a fresh FIR can be registered underSection 269 of BNS, 2023. sd/- 21/01/2025 / TRUE COPY / 21/01/2025 Sub-Assistant Registrar (CS-I/II/III/IV) Madurai Bench of Madras High Court, Madurai - 625 023. TSG TO1.The Principal Special Judge for Trialof Narcotic Drugs and Psychotropic Substances Act Cases, Madurai.2.The I Additional Special Judge forNDPS Act Cases, Madurai.3.The Superintendent, Central Prison, Madurai.4.The Inspector of Police, Tenkasi Police Station, Tenkasi District. 9/10 https://www.mhc.tn.gov.in/judis CRL OP(MD). No.22372 of 20245.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.+1 CC to M/s.S.SIVA SURIA NARAYANAN, Advocate ( SR-561[I] dated21/01/2025) ORDER IN CRL OP(MD) No.22372 of 2024 Date :21/01/2025RK(21/01/2025) 10P / 7C Madurai Bench of Madras High Court is issuing certified copies in this format from17/07/2023 10/10