ABOOBACKER v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 BAIL APPL. NO. 5177 OF 2023** **CRIME NO.1071/2022 OF Tirur Police Station, Malappuram** ## **PETITIONERS/ACCUSED NO.2:** ABOOBACKER, AGED 26 YEARS S/O ABDULLA, POCHENGAL HOUSE, VENGARA P.O, MALAPPURAM DISTRICT-676304. BY ADVS. SOJAN MICHEAL V.S.BOBAN CHACKO SIMON ANTONY ROBERT DIAS V.HARIKRISHNAN DELWIN B.P. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. SENIOR PUBLIC PROSECUTOR K DENNY DEVASSY **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06.11.2023, THE COURT ON 17.11.2023 DELIVERED THE FOLLOWING:** 2 B.A No.5177 of 2023 ## _**A. BADHARUDEEN, J.**_ _**================================** B.A No.5177 of 2023 ================================ Dated this the 17th day of November, 2023_ ## _**O R D E R**_ Regular bail plea moved for the second time at the instance of the 2nd accused in Crime No.1071/2022 is the crux of this petition filed under Section 439 of the Criminal Procedure Code. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant documents. 3. The prosecution case is that at about 11.35 p.m on 31.10.2022, accused Nos.1 and 2 were found transporting 190 gram of MDMA for the purpose of sale in a car bearing Registration No.KL 13AE 2272 from Malappuram to Tirur and during transit, they were nabbed redhandedly. Pursuant to recovery and arrest, crime alleging commission of offences punishable under 3 B.A No.5177 of 2023 Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act' hereinafter) was registered and the same is on investigation. 4. While pressing for regular bail for the petitioner/2nd accused, the learned counsel for the petitioner pointed out the progress of the investigation as well as the custody of the petitioner from 31.10.2022, as grounds to grant regular bail. The learned counsel for the petitioner further submitted that the accused is a first time offender. Since the trial could not be completed within a period of 6 months, following the ratio in [2023 (3) KHC 212], _**Fasil v. State of Kerala**_ , the accused deserves bail and the same may be allowed. 5. Whereas the learned Public Prosecutor zealously opposed the bail plea on the submission that the petitioner cannot be released on bail without satisfying the conditions provided under Section 37 of the NDPS Act, since the contraband involved is commercial quantity. 4 B.A No.5177 of 2023 6. It is also submitted by the learned Public Prosecutor that as there is a report from the learned Special Judge, Manjeri to the effect that the trial of the case could be completed within a period of four months from 10.11.2023, the ratio of the decision in _**Fasil**_ _**v. State of Kerala**_ 's case ( _supra_ ) has no application in this case. Accordingly, the petitioner did not deserve bail in this case. 7. In this matter, earlier bail application (B.A.No.1502/2023) filed by the petitioner was dismissed as per the observations in paragraph Nos.6 to 13 as under: _“6. On perusal of the case diary, it is discernible that accused Nos.1 and 2 were nabbed redhandedly while they were transporting 190 grams of MDMA, admittedly commercial quantity and therefore, grant of bail shall be subject to the conditions provided in Section 37 of the NDPS Act._ _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.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--_ _(a) every offence punishable under this Act shall be cognizable;_ 5 B.A No.5177 of 2023 _(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 subsection (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 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_ 6 B.A No.5177 of 2023 _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._ _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_ 7 B.A No.5177 of 2023 _[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 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 innocent and he will not commit any offence while on bail. Therefore, application for regular bail at the instance of the petitioner must fail.”_ 8. Thus it appears that the ratio of _**Fasil v. State of**_ _**Kerala**_ 's case ( _supra_ ) would apply only when the accused has been in custody for more than one year, who has no criminal antecedents, where trial of the case could not be completed within 8 B.A No.5177 of 2023 six months. In this matter, when a report from the learned Special Judge, Manjeri was called for to ascertain the possibility of trial and disposal of S.C.No.493/2023 within six months, the learned Special Judge reported, as per letter dated 01.11.2023 that the case would be disposed of within a period of four months from 10.11.2023. 9. Since it is reported by the learned Special Judge, Manjeri, that S.C.No.493/2023 stood posted to 10.11.2023 for examination of CW1 and the trial in this case would be completed immediately and the case would be disposed of within four months from 10.11.2023, there is no reason to apply the ratio in _**Fasil v. State of Kerala**_ 's case ( _supra_ ) in the present case. 10. In view of the above discussion, the bail application deserves to be dismissed directing the Special Judge, Manjeri, to expedite the trial and dispose of the case within a period of four months from 10.11.2023. Accordingly, this Bail Application stands dismissed with 9 B.A No.5177 of 2023 direction to the learned Special Judge, Manjeri, to dispose of S.C.No.493/2023 within four months from 10.11.2023, as reported. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_