AADIL S. HANEEF v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944** **BAIL APPL. NO. 569 OF 2023** ## **CRIME NO.42 OF 2023 OF KANJIRAPPALLY POLICE STATION,** ## **KOTTAYAM** ## **PETITIONER/2ND ACCUSED:** AADIL S. HANEEF AGED 22 YEARS S/O SALI K. HANEEF, SHALIMAR HOUSE, PAKISTHAN KAVALA BHAGOM, CHAMAMPATHAL KARA, VAZHOOR VILLAGE, KOTTAYAM DISTRICT, PIN – 686517. BY ADVS. DHANYA BABU M.LIJU NEETHU SASI AJAY JUEL KURIAKOSE RICHU THERESA ROBERT SAJNA JALEEL JAYALAKSHMI P. JAYAN ASHEETA NELSON ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 2 STATION HOUSE OFFICER KANJIRAPPALLY POLICE STATION, KOTTAYAM DISTRICT, PIN – 686555. BY SENIOR PUBLIC PROSECUTOR SMT. T.V.NEEMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.02.2023, THE COURT ON 28.02.2023 DELIVERED THE FOLLOWING: B.A.No.569/2023 2 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.569 of 2023_ ================================ _Dated this the 28[th] day of February, 2023_ ## _**O R D E R**_ This is an application for regular bail filed, under Section 439 of the Criminal Procedure Code, by the petitioner, who is the second accused in Crime No.42/2023 of Kanjirappally Police Station, Kottayam, alleging commission of offences punishable under Sections 22(c), 20(b)ii(A) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act' hereinafter). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary and report of the Investigating Officer, placed by the learned Public Prosecutor. B.A.No.569/2023 3 3. The prosecution case is that on search being done by the police at the house of the 1[st] accused at 8.10 p.m on 08.01.2023, 300 ml of LSD Stamp and 1 gram of Hashish were recovered from there and the 1[st] accused ran away from there. Thereafter when the police party questioned the 1[st] accused, after his arrest, he informed that the petitioner herein/the 2[nd] accused had given the contraband to him. Accordingly, the petitioner got arrayed as the 2[nd] accused and he was arrested on 11.01.2023. 4. The learned counsel for the petitioner pressed for grant of regular bail on the submission that the petitioner has been in custody from 11.01.2023 and he has no criminal antecedents. It is submitted that since the investigation requiring him in custody is practically over, he may be released on bail. 5. Whereas the learned Public Prosecutor zealously opposed the bail plea on the submission that the petitioner, who got involved in a very serious crime cannot be released at the B.A.No.569/2023 4 primitive stage of investigation and the same would affect the fair investigation of the case. 6. To be on the crux of the matter, commercial quantity of contraband was seized from the 1[st] accused and later on investigation, it was found that the 2[nd] accused/petitioner herein is the person who supplied the contraband. The prosecution records, _prima facie_ , do justify the allegations. In addition to that the prosecution records would go to show that the petitioner was arrayed in another crime, vide Crime No.35/2023 of Peramangalam Police Station, alleging commission of offences under Section 20(b)(ii)(A) of the NDPS Act. Thus this is the 2[nd] crime against the petitioner registered in 2023 itself. 7. When the prosecution alleges possession of commercial quantity of contraband, the rigour under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: _“37. Offences to be cognizable and non-bailable.--_ B.A.No.569/2023 5 _(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--_ - _(a) every offence punishable under this Act shall be cognizable;_ _(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--_ - _(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and_ _(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail._ _(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail._ 8. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused B.A.No.569/2023 6 - is not guilty of such offences and (2) he will not commit any of fence while on bail. 9. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, _**Union of**_ - _**India v. Shiv Shankar Kesari**_ and held that the expression ‘rea sonable grounds’ means something more than _prima facie_ grounds. It connotes substantial probable causes for believing that - the accused is not guilty of the offence charged and this reason able belief contemplated in turn points to existence of such facts - and circumstances as are sufficient in themselves to justify record ing of satisfaction that the accused is not guilty of the offence charged. 10. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable B.A.No.569/2023 7 grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has - not to consider the matter as if it is pronouncing a judgment of ac quittal and recording a finding of not guilty. 11. While considering the rider under Section 37 of the - NDPS Act, the same principles have been reiterated, in the deci sions reported in _**Superintendent, Narcotics Central Bureau v. R.Paulsamy**_ [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], _**Customs, New Delhi v. Ahmadalieva Nodira**_ [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], _**Union of India v. Abdulla**_ [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], _**N.R.Mon v. Md.Nasimuddin**_ [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], _**Union of India v. Rattan Malik**_ [2009 B.A.No.569/2023 8 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], _**Union of India v. Niyazuddin**_ [2017 KHC 4465: _**-**_ AIR 2017 SC 3932: 2018 (13) SCC 738], _**State of Kerala v. Ra jesh**_ [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on . this point is [2023 CriLJ 799], _**Union of India v. Jitentra Giri**_ 12. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are _sine qua non_ for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or - Section 27A and also for the offences involving commercial quan tity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could B.A.No.569/2023 9 - not grant bail without recording satisfaction of the above twin in gredients. 13. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that - there are reasonable grounds for believing that the petitioner is in - nocent and he will not commit any offence while on bail. There fore, application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.569/2023 10 ## **APPENDIX OF BAIL APPL. 569/2023** PETITIONER'S ANNEXURES Annexure-A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.42/2023 OF THE KANJIRAPPALLY POLICE STATION Annexure-A2 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.35/2023 OF THE PERAMANGALAM POLICE STATION