Ahamad Roufali v. The Intelligence Officer, Narcotics Control Bureau, Kochi and Narcotics Control Bureau, Sub Zone Cochin

**BAIL APPL. NO. 8817 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943** **BAIL APPL. NO. 8817 OF 2021** ## **PETITIONER** AHAMAD ROUFALI AGED 41 YEARS S/O. UMMALIMA, BENOOR HOUSE, BENOOR, P.O. PERUMBALA, PERUMBALA, KASARAGOD-671317. BY ADV SATHEESHAN ALAKKADAN ## **RESPONDENTS/COMPLAINANT AND STATE:** 1 THE INTELLIGENCE OFFICER NARCOTICS CONTROL BUREAU, KOCHI. 2 NARCOTICS CONTROL BUREAU , SUB ZONE COCHIN, REPRESENTED BY ITS STANDING COUNCIL, HIGH COURT OF KERALA, ERNAKULAM. BY ADV K.R.RAJAGOPALAN NAIR (PERUMBAVOOR) ## **OTHER PRESENT:** K.R.RAJAGOPALAN NAIR -S.C THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.12.2021, THE COURT ON 14.12.2021 DELIVERED THE FOLLOWING: **BAIL APPL. NO. 8817 OF 2021** **2** ## **ORDER** The petitioner has moved this application under section 439 of the Code of Criminal procedure for his release on bail. He is undergoing incarceration since 30.9.2021 in connection with O.R.No.5 of 2021 of Narcotic Control Bureau, Sub Zone, Cochin, (for short 'NCB) registered for the offfences punishable under Sections 8(C) read with Section 20(b) (ii)(C), 28 and 29 of the NDPS Act. 2. The prosecution allegation is that on 10.9.2021 around 18.30 hours, the Intelligence Officer, NCB Sub Zone received a secret information from A W Courier and Cargo, Kaloor, Ernakulam that one courier parcel having Consignment No.500178717413 reached there in the office suspected to contain narcotic item. The parcel had a sticker embedded as spy agencies, authorized franchise of Trackon, Calicult with consigner address as one Ahmed Roufali, Kasargod. Acting on the information he along with his team proceeded to A W Courier and Cargo service and after complying with the statutory formalities the suspected parcel was opened and found so many food articles and containers of Kottakal Arya Vaidyasala . Out of the containers a plastic container was found leaking, so on suspicion the same was examined and then **BAIL APPL. NO. 8817 OF 2021** **3** found that it was repacked without the logo or seal of Kottakal Arya Vaidyasala. So it was opened and a thick liquid substance with strong smell was found inside the container. Seven similar plastic containers were also found in the parcel with objectionable substance and all the containers were opened and found similar substance. The liquid was tested with the drug detection kit and the samples tested positive for hashish oil. The same was seized by the team and thereafter the booking details of the courier parcel was handed over by the Manager of AW Courier and Cargo with the connected documents. The total quantity of hashish oil was found to be 3.500 kg. Inside the parcel box a printer paper slip was found pasted with the consignor's as well the consignees' name and full address. After complying with the formalities investigation was conducted and thus this petitioner was apprehended on 30.09.2021 while he was returning to Kozhikode from Vijayawada via Bangalore from Bangalore railway station and thus he has been booked for the offences. 3. Heard the learned counsel for the petitioner as well the learned Public Prosecutor. 4. It is submitted on behalf of the petitioner by the learned **BAIL APPL. NO. 8817 OF 2021** **4** counsel that he has absolutely no connection with the contraband seized. In fact he used to sell Ayurvedic medicines of Kottakal Arya Vaidyasala to the addressee Davood Rayammarakkar Shamsudheen in Bahrain. The enemies of the petitioner might have inserted the drugs in the parcel but he has not committed any offence as alleged. 5. On the other hand the learned Public Prosecutor opposed the application highlighting the fact that the investigation of the case is only in the preliminary stage. 6. Huge quantity of hashish oil was recovered. As per the records available as such, the quantity involved is 3.5 kg. The same was seized by the NCB on getting information from the courier service as they received a parcel in which the consignor's name was found pasted on the side of the parcel. The courier service had informed the NCB on suspicion and the officials of the NCB after complying with the formalities proceeded to the office of the courier service and then, seized the articles after examining the same with the inspection kit in their possession. The quantity of 3.5 kg of hashish oil is commercial quantity and it was found inside the packet along with so many food articles as well Ayurvedic medicines. The petitioner was apprehended as his name **BAIL APPL. NO. 8817 OF 2021** **5** was reflected in the container as who forwarded the consignment so as to send it to the consignee by Air. So prima facie there is a strong case and that is revealed from the records of the NCB. Since, commercial quantity of contraband is involved, it is to be noted that Section 37 of the NDPS Act regulates grant of bail to the accused. Section 37 of the NDPS Act reads as follows: “37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974),- (a) every offfence 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 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]” **BAIL APPL. NO. 8817 OF 2021** **6** 7. So as per Section 37 only if there are reasonable grounds to believe that the accused has not committed an offence he is entitled for bail. But at the same time he is also supposed to prove his case that he is not likely to commit any offence while on bail. 8. Interpreting the word 'reasonable grounds to believe ' in Section 37(1)(b)(ii) of the NDPS Act, the Apex 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. 8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. 10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn of Greater Mumbai v. Kamla Mills Ltd) 11. The court while considering the application for bail with reference to **BAIL APPL. NO. 8817 OF 2021** **7** Section 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.” ## In **State of Kerala v. Rajesh** (2020(1) KHC 557) the Apex Court while dealing with a case in which commercial quantity is involved again held as follows: “20. The scheme of S. 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S. 439 of the Cr.PC, but is also subject to the limitation placed by S.37 which commences with nonobstante 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 of granting bail operates. 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of S.37 that **BAIL APPL. NO. 8817 OF 2021** **8** in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” 9. Here I could not find any reasonable grounds for believing that the petitioner has not committed the offence and he is not guilty. The offences alleged against the petitioner is no doubt grave and serious in nature. Stringent conditions and provisions are imposed in the NDPS Act with the intention to control and to prevent the social evil, still it is unfortunate that the drug peddling has a deep grip in the society and the life of youth are spoiled due to the nefarious activities of drugs trafficking. It appears that drug traffickers are inventing new methods day by day, for its transportation and sale. 10. The learned counsel has submitted that the petitioner is a HIV positive patient and he was taking treatment from the Government Hospital, Kasaragod. So his further detention in jail will affect his health adversely and therefore he is entitled for his release on bail. 11. Though he is suffering from such an ailment, that itself is not a ground to release him on bail as huge quantity of narcotic drugs is involved. Moreover it is the responsibility of the jail authorities to **BAIL APPL. NO. 8817 OF 2021** **9** provide the required treatment to him. 12. Prima facie it is revealed that there is a strong case against the petitioner and the quantity of the contraband involved is commercial quantity. 13. I find absolutely no justification or reasonable grounds to believe or at least to presume that the petitioner is totally innocent of the allegations levelled against him. For the foregoing reasons, I find that the petitioner is not entitled to be released on bail. Dismissed. Sd/- SHIRCY V JUDGE smm