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There is nothing to hold that the petitioner is not guilty of the offence alleged against him and the facts presented by public prosecutor clearly indicate the involvement of the petitioner in carrying out the contraband as well hence, the petitioner cannot be granted bail and was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE GOPINATH P. in the case of RAHIM vs. STATE OF KERALA (BAIL APPL. NO. 2046 OF 2022)on 1^st April, 2022.

Brief facts of the case are that the petitioner is the second accused. On the basis of secret information, a car bearing registration No.KL-07-C-3840 was searched and 50 Kilograms of Ganja were seized. The petitioner is the driver of a lorry bearing registration No.KL-22-N-4503, in which the Ganja was originally transported to Kerala which was thereafter shifted to the car.

Learned counsel for petitioner submitted that it is only on the basis of the confession of the co-accused, the petitioner cannot be arrayed as an accused as the confession of the co-accused is not admissible in evidence. Therefore, the provisions of Section 37 of the NDPS Act cannot be extended to the petitioner and the rigor contained in that provision does not apply while considering the bail application of the petitioner. He submitted that the petitioner has been in custody for more than ten months and his continued detention is not necessary for the purpose of any investigation.

Learned Public Prosecutor submitted that going by the statement given by the owner of the property where the car was parked, the petitioner came with a lorry in which the contraband was carried and thereafter the said contraband was shifted to the car in question. He submitted that at that time both the accused were present at the spot. Learned Public Prosecutor also submitted that there are sufficient details including call record details, which show that the petitioner/second accused had gone to Andhra Pradesh in the lorry and had purchased the contraband from Andhra Pradesh and brought it to Thiruvananthapuram,  call record details of the petitioner show that he had contacted the first accused 177 times during the relevant period. And the submission of the learned counsel for the petitioner that the petitioner has been arrayed as an accused solely on the basis of the confession statement of the co-accused is not correct in the facts and circumstances of the case.

In view of facts and circumstances, Court held that no recovery was made from the possession of the petitioner is no reason to hold that the rigor of Section 37 of the NDPS Act does not apply to the petitioner and the facts presented by public prosecutor clearly show the involvement of petitioner in the matter and he cannot be granted bail. Prima facie, there is nothing to hold that the petitioner is not guilty of the offence alleged against him.

Click here to read the Judgment

Judgment reviewed by – Amit Singh