AHAMMAD NISHAF ANVAR @ CHAPPU v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 8[TH] DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945 BAIL APPL. NO. 3251 OF 2023 ``` ``` CRIME NO.1029/2022 OF KASARAGOD POLICE STATION, KASARAGOD ``` ``` CRL.MP 1587/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD, ARISING FROM BAIL APPL. 1885/2023 OF HIGH COURT OF KERALA PETITIONER/ACCUSED NO.2: ``` ``` AHAMMAD NISHAF ANVAR @ CHAPPU AGED 24 YEARS S/O.MUHAMMED ASHRAF.B.M, RESIDING AT B.M. HOUSE, PADINJARMOOLA, NAIMARMOOLA, KASARAGOD DISTRICT., PIN - 671123 ``` ``` BY ADV SHANAVAS NALAKATH RANDUPURAYIL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` BY SR.PUBLIC PROSECUTOR SRI.P.G.MANU ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25.08.2023, THE COURT ON 8.9.2023, DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 3251 OF 2023 2 ``` ## **ORDER** Dated this the 8[th] day of September, 2023 This is the second application for regular bail filed by the 2[nd] accused in Crime No.1029/2022 of Kasaragod Police Station, Kasaragod. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. I have perused the relevant documents including the report of the Investigating Officer, in detail. 4. The prosecution case is that, at about 10.00 a.m. on 26.12.2022, while Sub Inspector of Police, Kasaragod Police Station was doing patrol duty and when reached at 13.00 hrs. near Abdul Rahman Haji park, Poyakkara, it was found that a person was engaged in smoking inside the park. On seeing the police party, he attempted to hide himself. He was intercepted and questioned and later, 48 grams of MDMA ecstasy pills were recovered from him. Thereafter, the person, who was found in doubtful circumstances, was arrested and arrayed as accused in this crime on the allegation that, he had possessed 48 grams of ``` BAIL APPL. NO. 3251 OF 2023 3 ``` MDMA ecstasy pills, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter) and thereby, committed offences punishable under Sections 27(b) and 22(c) of the NDPS Act. On further enquiry, it was revealed that the 2[nd] accused/petitioner herein is the person, who used to supply MDMA to the 1[st] accused through online and in this regard, constant calls in between the 1[st] and 2[nd] accused from their respective mobile numbers viz., 9074124317 (1[st] accused) and 9380678787 and 9544852734 (2[nd] accused) and whats app chats also were recovered. Accordingly, the 2[nd] accused was arrested and it was found that the 2[nd] accused obtained Rs.41,000/- (Rupees Forty One Thousand only) from the 1[st] accused for the purpose of booking MDMA to the 1[st] accused and the same was converted into crypto currency. Accordingly, he also was nabbed and arrayed as 2[nd] accused and he has been in custody from 28.12.2022 onwards. 5. The learned counsel for the petitioner reiterated the contentions raised before the trial court repeatedly in Crl.M.P.No.486/2023 and Crl.M.P.No.1587/2023, two successive bail applications filed by the petitioner before the Special Court, ``` BAIL APPL. NO. 3251 OF 2023 4 ``` which ended in dismissal. 6. Eventhough the learned counsel for the petitioner argued at length to convince this Court that the complicity of the petitioner is something less, the learned Public Prosecutor vehemently supported the prosecution case and argued that the prosecution case as to involvement of the petitioner in this crime is well made out and therefore, his complicity is at par with the 1[st] accused in a case involving commercial quantity of MDMA. Therefore, the petitioner cannot be released on bail by diluting the rider under Section 37 of the NDPS Act. 7. To be on the crux of this matter, as per Annexure 1 order, the learned Special Judge dismissed the bail application at the instance of the petitioner, holding that the petitioner’s involvement in this crime is well made out and he should not be released on bail by diluting the rider under Section 37(1)(b)(ii) of the NDPS Act. Thereafter, the petitioner filed B.A.No.1885/2023 before this Court and later, the same was withdrawn with permission, as per Annexure 2 order. It was thereafter, Annexure 3 order was passed by the Special Judge, dismissing the bail application moved by the petitioner for the second time. ``` BAIL APPL. NO. 3251 OF 2023 5 ``` 8. The learned counsel for the petitioner pointed out noncompliance of Section 50 of the NDPS Act, as grounds to canvass bail, in a case involving commercial quantity, as raised before the Special Court. The Special Court, relying on the decisions in **Union of India** v. **Md.Nawaz Khan** reported in **[(2021) (10) SCC 100]** , **Surendran** v. **State of Kerala** reported in **[2022 (6) KHC 262]** and **State of Punjab** v. **Baldev Singh** reported in **[AIR 1999 SC 2378]** found that, _the question whether or not the safeguards provided under Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial._ This is the legal position. 9. In this matter, the complicity of the petitioner is well made out and in such a case, grant of bail shall be after satisfying the conditions provided under 37 of the NDPS Act. ``` BAIL APPL. NO. 3251 OF 2023 6 ``` 10. 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 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._ 11. On a perusal of Section 37(1)(b)(ii), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, ``` BAIL APPL. NO. 3251 OF 2023 7 ``` 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. 12. 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 circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 13. 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 ``` BAIL APPL. NO. 3251 OF 2023 8 ``` 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. 14. 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** ## **`BAIL APPL. NO. 3251 OF 2023 9`** [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** . 15. 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. 16. 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 ``` BAIL APPL. NO. 3251 OF 2023 10 ``` grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 17. 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. Accordingly, this bail application stands dismissed. Sd/- **A. BADHARUDEEN JUDGE** Bb