Abdul Shareef and Saleem T.K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 33 OF 2024`** ``` CRIME NO.11/2023 OF NILAMBUR EXCISE RANGE OFFICE, ``` ## **`MALAPPURAM`** ## **`PETITIONER/ACCUSED NO.1:`** ``` ABDUL SHAREEF, AGED 29 YEARS S/O. ABDUL LATHEEF, VALIYAVEETTIL HOUSE, KUTTIPPALA-KANTHALLOOR DESOM, VATTAMKULAM VILLAGE, PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679578 ``` ``` BY ADV R.RANJITH (MANJERI) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH Bail Appl. No.972/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 972 OF 2024`** ``` CRIME NO.11/2023 OF NILAMBUR EXCISE RANGE OFFICE, ``` ## **`MALAPPURAM`** ``` AGAINST THE ORDER/JUDGMENT DATED 20.12.2023 IN SC NO.1123 OF 2023 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` SALEEM T.K AGED 35 YEARS S/O KUNJIMARAKKAR, THEKKINITHETHIL HOUSE, PADINJARANGADI P.O, PALAKKAD DISTRICT, PIN - 679552 BY ADVS. ANAND KALYANAKRISHNAN C.DHEERAJ RAJAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` BY ADV SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH Bail Appl..33/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` ## **C.S.DIAS, J.** ## **-------------------------------------------------------B.A. No. 33 OF 2024 & B.A. No. 972 OF 2024** **------------------------------------------------------Dated this the 14[th] day of March, 2024** ## **C O M M O N O R D E R** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 1 and 3 in Crime No.11/2023 of the Nilambur Excise Range Office, Malappuram, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). The petitioners were arrested on 13.03.2023. 2. The crux of the prosecution case is that: on 13.03.2023 at around 18.50 hours, the accused 1 to 3 ``` 4 ``` ## **`BAIL APPL. NOs.33 OF 2024 & 972 OF 2024`** were found travelling in a motor car bearing Reg. No. KL 52 S 4918 at Palad Desom in Vazhikkadavu Amsom. The vehicle was intercepted by the Excise party and in the search that was conducted, 52.5 grams of MDMA was seized from the music system of the vehicle. Thus, the accused have committed the above offences. 3. Heard; Sri. R. Ranjith and Sri. Anand Kalyanakrishnan, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that, petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no material to link the petitioners with the above crime. The learned counsel drew the attention of this Court to the Final Report (complaint) laid by the ``` 5 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` Investigating Officer which shows that, even though there is an allegation that the first accused had received an amount of Rs.42,000/- (Rupees forty two thousand only), the investigation has unveiled that was a transaction with one Aboobackar Siddique, which has nothing to do with the present crime. Similarly, even though there was an allegation that the third accused went to Banglore after receiving Rs.20,000/(Rupees Twenty thousand only), he does not even have a bank account. The third accused was only a paid driver of the first accused and there is no material to show his involvement in the crime. Both the learned counsel submitted that in the Final Report that was served on the accused, the copy of the 52A certification does not have the certification of the jurisdictional Magistrate as contemplated under Section 52A of the Act. Moreover, in the chemical ``` 6 ``` ## **`BAIL APPL. NOs.33 OF 2024 & 972 OF 2024`** analysis that was conducted, it has turned out that the contraband is not MDMA but a only methamphetamine. In any given case, the petitioners have been in judicial custody since 13.03.2023, which is one year. The investigation in the case is complete and the recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the applications may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the contraband that is involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. She further submitted that the sample was taken in the presence of the Magistrate on 14.03.2023, which is certified by the Judicial First Class Magistrate Court, Nilambur. The contraband was seized from the car ``` 7 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` belonging to the first accused. The accused 1 to 3 had travelled all the way from Nilambur to Banglore and returned back in the same vehicle. It was the third accused who drove the vehicle. There are materials to show that there was incriminating conspiracy hatched between the accused 1 to 3. It was in the said background that Section 29 of the Act has been incorporated. Whether there has been infraction of Sections 42, 50 and 52A of the Act is a matter of trial. Merely, because the petitioners have been in judicial custody for nearly a year, is not a ground to dilute the rigour under Section 37 of the Act. If the petitioners are released on bail, there is every likelihood of them committing a similar offence. Hence, the applications may be dismissed. 6. The gravamen of the prosecution allegation is that, the accused 1 to 3 had travelled from Nilambur ``` 8 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` to Banglore and purchased the contraband article and brought it to the State of Kerala. While they were travelling together in the car belonging to the first accused, that the Excise party intercepted the vehicle and conducted a search in the vehicle and seized the contraband articles, which was suspected to be MDMA. In the chemical analysis, it has turned out that the contraband is methamphetamine and not MDMA. However, the fact remains that the quantity of the contraband is 52.5 grams of MDMA. 7. One of the cardinal contentions of the learned counsel for the petitioners was that, the samples were not drawn in the presence of the jurisdictional Magistrate, which is infraction of Section 52A of the Act. ``` 9 ``` ## **`BAIL APPL. NOs.33 OF 2024 & 972 OF 2024`** 8. In the light of the above submissions, by order dated 05.03.2024, this Court had called for a report from the Special Judge to forward a copy of the certification of the list of representative samples that were taken from the accused as contemplated under Section 52A(2)(c) of the Act in the above crime. Pursuant to the said order, the learned Special Judge, by communication dated 07.03.2024, has forwarded the copy of the certification of list of representative samples dated 14.03.2023, which is seen signed by the Judicial First Class Magistrate Court, Nilambur and the same was forwarded to the Special Judge and received by him on 07.03.2024. 9. Prima facie on going through the said letter, I am satisfied that the sampling has been done in the presence of the jurisdictional Magistrate as contemplated under Section 52A of the Act. ``` 10 ``` ## **`BAIL APPL. NOs.33 OF 2024 & 972 OF 2024`** 10. The next contention of the learned counsel for the petitioners was that there is no material to link the complicity of the petitioners in the above crime. Indisputably, the car from which the contraband was seized belongs to the first accused. There is cogent materials on record to show that the accused 1 to 3 had travelled in the car to Banglore and returned to Nilambur in the same car. It was when the three accused were travelling in the same vehicle, that the vehicle was intercepted, the search was conducted and the contraband was seized. Whether there is a violation of Sections 42 and 50 is a disputed question of the Act. The fact remains that the Final Report has been laid, showing the involvement of the petitioners in the crime. 11. Indisputably, the contraband that has been seized is of commercial quantity. Therefore, the rigour ``` 11 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` under Section 37 of the Act applies. 12. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows: “37. Offences to be cognizable and non-bailable. —(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” ``` 12 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` 13. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 14. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: ``` 13 ``` ## **`BAIL APPL. NOs.33 OF 2024 & 972 OF 2024`** “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression 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 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”. ## 15. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. ``` 14 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` 16. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 17. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if ``` 15 ``` ## **`BAIL APPL. NOs.33 OF 2024 & 972 OF 2024`** released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail” 18. On a meticulous scrutiny of the factual matrix, the rival submissions made across the Bar, the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, the potential severity of the punishment that is likely to be imposed on the them, the commercial quantity of the contraband that is involved in the case, I am at the stage satisfied that there are reasonable grounds to hold that the petitioners are guilty of the offence alleged against them and that they are likely to commit a similar offence, if they are enlarged on bail. Therefore, there are no convincing grounds to dilute the rigour under ``` 16 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` Section 37 of the Act. The applications are meritless and are only to be rejected. Resultantly, the applications are dismissed. **Sd/C.S. DIAS JUDGE** BR ``` 17 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 33/2024`** |**`PETITIONER’S`**|**`ANNEXURES`**| |---|---| |**`Annexure A`**|**`TRUE COPY OF THE CRIME AND OCCURRENCE`**| ||**`REPORT IN CRIME NO.11/2023 OF THE`**| ||**`EXCISE RANGE OFFICE, NILAMBUR`**| |**`Annexure B`**|**`TRUE COPY OF THE CHEMICAL ANALYSIS`**| ||**`REPORT IN CRIME NO.11/2023 OF THE`**| ||**`EXCISE RANGE OFFICE, NILAMBUR`**| |**`Annexure C`**|**`TRUE COPY OF THE LIST OF REPRESENTATIVE`**| ||**`SAMPLE TAKEN AS PER SECTION 52A(2)(C)`**| ||**`FROM THE THONDY ARTICLES OF NDPS CRIME`**| ||**`NO.11/2023 OF THE EXCISE RANGE OFFICE,`**| ||**`NILAMBUR ALONG WITH THONDI LIST`**| |**`Annexure D`**|**`TRUE COPY OF THE APPLICATION FOR`**| ||**`DISPOSAL OF SEIZED NARCOTIC DRUGS,`**| ||**`PSYCHOTROPIC SUBSTANCES, CONTROLLED`**| ||**`SUBSTANCES AND CONVEYANCES UNDER`**| ||**`SECTION 52A (2) OF THE NDPS ACT`**| ## **`RESPONDENT’S ANNEXURES: NIL`** ``` 18 ``` ``` BAIL APPL. NOs.33 OF 2024 & 972 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 972/2024`** |**`PETITIONER’S`**|**`ANNEXURES`**| |---|---| |**`Annexure 1`**|**`THE TRUE COPY OF THE OCCURRENCE REPORT`**| ||**`IN CRIME 11/2023 OF NILAMBUR EXCISE`**| ||**`RANGE OFFICE DATED 13.03.2023`**| |**`Annexure 2`**|**`THE TRUE COPY OF THE CHEMICAL ANALYSIS`**| ||**`REPORT DATED 24.06.2023 ISSUED BY`**| ||**`CHEMICAL`**<br>**`EXAMINER'S`**<br>**`LABORATORY`**| ||**`DEPARTMENT`**| |**`Annexure 3`**|**`THE APPLICATION FOR DISPOSAL OF SEIZED`**| ||**`NARCOTICS DRUGS PREFERRED BY THE`**| ||**`DETECTING OFFICER DATED 15.03.2023`**| |**`Annexure 4`**|**`THE TRUE COPY OF ANNEXURE 1 INVENTORY`**| ||**`FORM DATED 15.03.2023`**| |**`Annexure 5`**|**`THE TRUE COPY OF THE LIST OF`**| ||**`REPRESENTATIVE SAMPLES TAKEN AS PER`**| ||**`SECTION 52A(2)(C)`**| |**`Annexure 6`**|**`THE CERTIFIED COPY OF THE ORDER DATED`**| ||**`20.12.2023 IN CMP NO 03/2023 IN S.C`**| ||**`1123/2023 ON THE FILES OF SPECIAL COURT`**| ||**`FOR SC/ST(POA) ACT AND NDPS CASES,`**| ||**`MANJERI`**| ## **`RESPONDENT’S ANNEXURES: NIL`**