Abdul Akbar M. A. @ Akku v. The Station House Officer, Kumbla Police Station, Kasaragod and The State of Kerala represented by Public Prosecutor

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 BAIL APPL. NO. 684 OF 2023 ``` ``` CRIME NO.846/2022 OF KUMBLA POLICE STATION, KASARAGOD PETITIONER/ACCUSED: ``` ``` ABDUL AKBAR M. A. @ AKKU AGED 23 YEARS ``` ``` S/O. MOOSA, PACHAMBALA HOUSE, ICHILAMGOD POST, MANGALPADY (VIA), MANJESHWAR TALUK, KASARAGOD., PIN - 671324 ``` ``` BY ADV ANN SUSAN GEORGE ``` ## **`RESPONDENTS/COMPLAINANT AND STATE:`** - **`1 THE STATION HOUSE OFFICER KUMBLA POLICE STATION, KASARAGOD., PIN - 671321`** - **`2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031 BY ADV.P G MANU SR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ``` ``` ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BANo. 684 of 2023 2 ## **A.BADHARUDEEN, J.** ## **----------------------------------------------BAIL APPL. No.684 of 2023** **----------------------------------------------Dated this the 7[th] day of March, 2023.** ## **O R D E R** This is an application for regular bail filed by the sole accused in Crime No.846/2022 of the Kumbla Police Station, Kasargode. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have meticulously gone through the relevant records forming part of the case diary including the recovery Mahazar. 4. The prosecution allegation as could be read out from the case diary materials placed by the learned Public Prosecutor is that at about 19.10 hrs on 08.11.2022 while the police party were conducting patrol duty, it was found that the petitioner possessed 11gms of MDMA. Accordingly, he was BANo. 684 of 2023 3 nabbed red handedly. Crime was registered alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience). 5. The learned counsel for the petitioner who pursued the relief of regular bail would submit that the petitioner is innocent. It is also submitted that the petitioner has been custody from 08.11.2022 and he is a first time offender. Further final report also was filed. Therefore, the petitioner deserves regular bail. 6. The learned Public Prosecutor strongly opposed the bail. It is submitted by the learned Public Prosecutor that commercial quantity of MDMA was seized from the conscious possession of the petitioner while he was transporting the same. Therefore, the grant of bail shall be subject to the satisfaction of the twin conditions provided under Section 37 of the Act. 7. On scrutiny of the available materials, 11gms of MDMA (commercial quantity) was seized from the conscious BANo. 684 of 2023 4 possession of the petitioner while he was possessing the same on search by the Investigating Officer. Therefore, prima facie the offence alleged to be committed by the accused under Section 22(c) of the NDPS Act is well made out. In such a case to grant bail shall be subject to the satisfaction of the conditions provided under Section 37 of the NDPS Act. 8. Section 37 of the NDPS Act reads as under. - “37. Offences to be cognizable and non-bailable.-- - (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 BANo. 684 of 2023 5 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. 9. 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 is not guilty of such offences and (2) he will not commit any offence while on bail. 10. 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 ‘reasonable grounds’ means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence BANo. 684 of 2023 6 charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 11. 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 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 acquittal and recording a finding of not guilty. 12. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions 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], BANo. 684 of 2023 7 **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 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. Rajesh** [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest Decision on this point is **Union of India v. Jitentra Giri** (2023 Crl.LJ 799) 13. 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 BANo. 684 of 2023 8 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 quantity 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 not grant bail without recording satisfaction of the above twin ingredients. 14. 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 innocent and he will not commit any offence while on bail. Therefore application for regular bail at the instance of the petitioner must fail. Hence this petition stands dismissed. **Sd/-** ## **A.BADHARUDEEN, JUDGE.** Mn BANo. 684 of 2023 9 ## **`APPENDIX OF BAIL APPL. 684/2023`** ``` PETITIONER ANNEXURES Annexure I ``` ``` THE FREE COPY OF THE ORDER DATED 11.01.2023. IN CRIMINAL M. P. NO. 6 / 2023 ON THE FILES OF THE COURT OF SESSION, KASARAGOD DIVISION ```