Abraham Nayak v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` CRIME NO.1444/2023 OF Hill Palace Police Station, Ernakulam ``` ``` ---------------- ``` ## **`PETITIONER/ACCUSED :-`** ``` ABRAHAM NAYAK, AGED 33 YEARS S/O. RAJESH NAYAK, SULUBA, GAJAPATI, ODISHA, PIN - 761 017 ``` ``` BY ADV V.S.THOSHIN ``` ## **`RESPONDENT/COMPLAINANT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 25th day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.1444/2023 of the Hill Palace Police Station, Ernakulam, which is registered against him, for allegedly committing the offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested and remanded to judicial custody on 03.07.2023. 2. The concise case of the prosecution is that; on 03.07.2023, at around 16:20 hrs., the accused was found in conscious possession of 32 kgs. of ganja in a bag near the Thrippunithura Railway Station road. The accused was arrested on the spot with the contraband article. Thus, the accused has committed the above offence. ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 3 :- ``` 3. Heard; Sri.Thoshin V.S., the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate that the petitioner is involved in the case. The petitioner is the sole bread winner of his family. He has a wife and three children. The petitioner has been in judicial custody for the last one year, the investigation in the case is complete and the final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crime. The petitioner was arrested with the contraband article on the spot. Since, the contraband involved in the ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 4 :- ``` case is of a commercial quantity, the rigour under Section 37 of the NDPS Act applies to the facts of the case. Therefore, the application is only to be dismissed. 6. The prosecution case is that; the petitioner was found in possession of 32 kgs. of ganja and he was arrested on the spot with the contraband article. Indisputably, the contraband involved in the case is of a commercial quantity. 7. 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 ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 5 :- ``` 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”. 8. 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. 9. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 6 :- ``` ## Supreme Court in **Union of India** v. **Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows :- “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”. ## 10. In **State of Kerala and others** v. **Rajesh and others** [(2020) 12 SCC 122], the Honourable Supreme Court held as follows :- “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 7 :- ``` illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondentaccused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 8 :- ``` limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 11. As observed in **Rajesh's case** (supra), 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. 12. 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 applications for bail in the following lines :- “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 ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 9 :- ``` 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 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”. 13. Indisputably, the contraband 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. 14. On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband involved in the case and the _prima facie_ material that shows the petitioner's involvement in the crime, I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of the offence ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 10 :- ``` alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out any valid ground to dilute the rigour under Section 37 of the Act. The application is meritless and it is only to be rejected. Resultantly, the application is dismissed. **Sd/C.S. DIAS, JUDGE** Jvt/26.7.2024 ``` BAIL APPL. NO. 5064 OF 2024 ``` ``` -: 11 :- ``` ## **`APPENDIX OF BAIL APPL. 5064/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure A1FREE COPY OF THE ORDER IN CRL MP NO. 948/2024 IN SC NO. 1633/2023 OF THE ADDITIONAL SESSIONS COURT-I D, ERNAKULAM DATED 19/04/2024 ```