Abhishag Roy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 BAIL APPL. NO. 1647 OF 2023** **CRIME NO.1159/2022 OF TOWN NORTH POLICE STATION, PALAKKAD** ## **PETITIONER/7TH ACCUSED:** ABHISHAG ROY, AGED 24 YEARS, D/O ROYSON, CHERUVATHUR HOUSE, ALPHA APARTMENT, MAGALIYAM P.O, KAKKANAD, ERNAKULAM DISTRICT, PIN – 682309. BY ADVS. SOJAN MICHEAL DELWIN B.P. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031. BY SENIOR PUBLIC PROSECUTOR SMT.T.V.NEEMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08.03.2023, THE COURT ON 22.03.2023 DELIVERED THE FOLLOWING: B.A.No.1647/2023 2 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.1647 of 2023_ ================================ _Dated this the 22[nd] day of March, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the 7th accused in Crime No.1159/2022 of Town North Police Station, Palakkad. 2. Heard the learned counsel for the petitioner and perused the case diary as such to be looked into the allegations in this case. 3. The prosecution case is that at about 11.35 hours on 09.12.2022 when the S.I of Police Town North Police Station was conducting vehicle checking at Kalmandapam Bye- pass Road near Trinity Eye hospital, accused 1 to 4 were found in possession of and transporting 153.430 gram of Methamphetamine in a car bearing Registration No.KL-10-AT-7125 through Chandranagar- B.A.No.1647/2023 3 Olavakkode bye-pass road. Accordingly, the contraband was taken into custody and accused 1 to 4 were nabbed. 4. Thereafter crime alleging commission of offences punishable under Sections 22(C), 25 r/w 29 of the Narcotic Drugs and Psychotropic Substances Act (`NDPS’ for short hereinafter). 5. The learned counsel for the petitioner, who pressed for grant of regular bail to the petitioner, who is arrayed as the 7[th] accused, vehemently canvassed that the 7[th] accused is absolutely innocent and the 7[th] accused, who is the wife of the 6[th] accused was arrested and detained in custody without support of sufficient materials. According to the learned counsel for the petitioner, going by the remand report the allegation of prosecution is that the contraband was given by one Fayas and there is no allegation in the remand report to the effect that the 7[th] accused supplied the contraband. Highlighting the custody of the petitioner from 23.12.2022, the progress of the investigation and visualised her involvement in this crime the learned counsel for the petitioner submitted that the rigour under Section 37 of the NDPS Act has B.A.No.1647/2023 4 no application in this case and therefore the petitioner deserves bail. 6. While the learned Public Prosecutor seriously opposed bail to the petitioner, who got involved in this crime, where commercial quantity of contraband was involved, on the submission that the 6[th] and 7[th] accused together handed over the contraband to the bus driver and the bus driver’s candid version in this regard. In fact, the statement as that of the bus driver, who obtained the contraband jointly from the 6[th] and 7[th] accused, is the strong evidence against the 7[th] accused and merely relying on the recitals in the remand report, it cannot be appreciated. Therefore, complicity of the petitioner is made out on par with the other accused and, therefore, she could not be released on bail without satisfying the conditions in Section 37 of the NDPS Act. 7. In this matter though there is reference to remand report that Fayas is the person who had given the contraband, Fayas given statement that Nagendra Swamy, the bus driver, had supplied the contraband. In this matter, the prosecution case is B.A.No.1647/2023 5 that the bus driver had given statement that the packet was handed over to him by the 6[th] and 7[th] accused posing as mutual helpers when the bus was at the Althibelli toll gate, Bengaluru, stating that it was an essential drug to be handed over to the 1[st] accused at Chandranagar, Palakkad. Accordingly, he had handed over the packet to the 1[st] accused at Chandranagar and thereafter accused 1 to 4 were transporting the same in their car and the contraband was seized. Thus _prima facie_ it appears that the contraband which was recovered from the car jointly by accused 1 to 4 was sent by accsued Nos.6 and 7 through the bus driver. If so, the complicity of the petitioner is well made out _prima facie_ and in such a case, grant of regular bail shall not be considered without diluting the rigour under Section 37 of the NDPS Act. No doubt, w hen 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.--_ _(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.A.No.1647/2023 6 - _(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 is not guilty of such offences and (2) he will not commit any offence while on bail. 9. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, _**Union of**_ B.A.No.1647/2023 7 _**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 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. 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 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. B.A.No.1647/2023 8 11. 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], _**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: B.A.No.1647/2023 9 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 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. 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 B.A.No.1647/2023 10 innocent and she will not commit any offence while on bail. Therefore, 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.1647/2023 11 ## **APPENDIX OF BAIL APPL. 1647/2023** PETITIONER'S ANNEXURES Annexure1 CERTIFIED COPY OF THE ORDER DATED 15.02,2023 IN CRL.M.P NO: 518 / 2023 OF THE 1ST ADDITIONAL SESSIONS COURT, PALAKKAD