Adithya Krishnan v. State of Kerala and The Station House Officer, Ernakulam Town North Police Station

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945 ``` ``` BAIL APPL. NO. 3659 OF 2023 ``` ``` CRMC 1057/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM CRIME NO.612/2023 OF ERNAKULAM TOWN NORTH POLICE STATION. ``` ``` PETITIONER/ACCUSED NO.4: ``` ``` ADITHYA KRISHNAN AGED 23 YEARS S/O KRISHNA KUMAR, THADIKKARAN BUILDING, MANJUMMEL, ELOOR VILLAGE, ERNAKULAM, PIN - 683501 BY ADVS. LAL K.JOSEPH P.MURALEEDHARAN (THURAVOOR) T.A.LUXY SURESH SUKUMAR KOYA ARAFA MIRAGE ANZIL SALIM SIDDHARTH KARUN PISHARODY ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE STATION HOUSE OFFICER ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM, PIN - 682018 ``` ``` BY SR.PUBLIC PROSECUTOR SMT.T V NEEMA ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 3659 OF 2023 2 ``` ## **ORDER** Dated this the 26[th] day of May, 2023 This is an application for regular bail, filed by the 4[th] accused in Crime No.612/2023 of Ernakulam Town North Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant records. 4. The prosecution allegation is that, based on a secret information to the effect that, four persons engaged in possession of MDMA in Room No.317 of Sidra Pristine Hotel, SRM Road, Ernakulam, the police party conducted search and on search, 294 grams of MDMA was seized in the presence of accused Nos.1 to 4. Thereafter, they were arrested and crime, alleging commission of offence punishable under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter), was registered. ## **`BAIL APPL. NO. 3659 OF 2023 3`** 5. The learned counsel for the petitioner would submit that the petitioner is innocent and he was nabbed without any justification. The learned counsel would submit that the 2nd and 3rd accused are neighbourhood friends of the 4th accused (petitioner) and the petitioner is a student, studying in Munnar Catering College. It is also submitted that, nothing recovered from the conscious possession of the 4th accused. Therefore, the petitioner, who has been in custody from 30.3.2023, is liable to be released on bail, after diluting the rigor under Section 37 of the NDPS Act. 6. Whereas, it is submitted by the learned Public Prosecutor that, the recovery itself is based on a secret information to the effect that, 4 persons, including the 4th accused, were possessing contraband, against the prohibitions contained in the NDPS Act and on recovery, based on the said information, contraband was seized from their joint possession and therefore, there is no reason to read the complicity of the petitioner/4th accused, in segregation, to hold that he is innocent or to dilute the rigor under Section 37 of the NDPS Act. ``` BAIL APPL. NO. 3659 OF 2023 4 ``` 7. On perusal of the records, including the recovery mahazar, the argument advanced by the learned Public Prosecutor appears to be convincing. 8. Available materials do not suggest anything to hold that the petitioner is innocent, in a case involving red-handed recovery of commercial quantity of contraband from a Hotel room, on the basis of a secret information. In such case, the rigor under Section 37 of the NDPS Act, would squarely apply. 9. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider 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) 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_ ## **`BAIL APPL. NO. 3659 OF 2023 5`** _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._ 10. 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. 11. 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 ``` BAIL APPL. NO. 3659 OF 2023 6 ``` 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. 12. 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. 13. 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: ## **`BAIL APPL. NO. 3659 OF 2023 7`** (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: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is one reported in [2023 Crl.L.J.799], **Union of India v. Jitendra Giri** . 14. 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 ``` BAIL APPL. NO. 3659 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. 15. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 16. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. ``` BAIL APPL. NO. 3659 OF 2023 9 ``` Accordingly, this bail application stands dismissed. Sd/- **A. BADHARUDEEN JUDGE** Bb