Ahammed Kabeer.C.A v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 BAIL APPL. NO. 10433 OF 2022** **CRIME NO.171/2022 OF KASARAGOD POLICE STATION, KASARAGOD** ## **PETITIONER/ACCUSED NO.2:** **AHAMMED KABEER.C.A AGED 40 YEARS, S/O.ABDUL KHADER, KABEER MANZIL, PERUMBALA KADAVU, NAIMARMOOLA, KASARGODE, PIN - 671123 BY ADVS. R.ANIL M.SUNILKUMAR SUJESH MENON V.B. T.ANIL KUMAR THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT MAHESH BHANU S. RESSIL LONAN B.RAMAN PILLAI (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR T V NEEMA - SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 10433 of 2022 2 ## **ORDER** ## **Dated this the 7[th] day of March, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 2[nd] accused in crime No.171/2022 of Kasaragod Police Station, Kasaragod. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant documents produced by the learned Public Prosecutor as well as the learned counsel for the petitioner in detail. 3. The case of the prosecution is that, at about 20.30 hours on 04.02.2022, the Sub Inspector of Police, Kasaragod was on petrol duty at a place near Chawki petrol pump, Kudiloor, an autorickshaw bearing registration No.KL-14-L-2060 was intercepted and it was found that accused Nos. 1 to 3, who were traveling inside the autorickshaw were transporting 22.3 kilogram of Ganja against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act' for short). Accordingly, the accused were nabbed red handedly and pursuant to recovery crime alleging commission of offences B.A.No. 10433 of 2022 3 punishable under Sections 20(b)(ii)(C) and 29 of the NDPS Act as well as Section 179(1) of the MV Act, was registered and the same is under investigation. 4. While pressing for grant of regular bail to the petitioner, who is arrayed as the 2[nd] accused, the learned counsel for the petitioner submitted that the petitioner is absolutely innocent and he has no connection with the contraband. In order to appraise this point, the learned counsel for the petitioner given emphasis to the recitals in the remand report as well as the report subsequently filed before the Special Court, Kasaragod, in connection with crime No. 202/2022 of Badiadka Police Station. 5. According to the learned counsel for the petitioner, at the time when the statement of the 1[st] accused in this crime was recorded, he stated that one Muhammed Kabeer N.M. handed over the contraband and the remaining part of the contraband was in custody of the said Muhammed Kabeer N.M. It is submitted further that, subsequently, on recovery of the contraband from the residence of the above said Muhammed Kabeer N.M., crime No. 202/2022 was registered alleging commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act. Even though, the petitioner herein also got arrayed as 4[th] accused in the B.A.No. 10433 of 2022 4 said crime, subsequently, he was removed from the array of accused by filing report to the effect that, the 4[th] accused had no involvement in crime No. 202/2022. 6. The attempt made by the learned counsel for the petitioner is that, since the Police filed report in crime No.202/2022 (the subsequently registered crime), the petitioner's complicity in both crimes could not be found _prima facie_ and as such he deserves bail in this case. The learned counsel for the petitioner also pointed out that, Section 37 of the NDPS Act shall not be a rider to grant bail in this case. 7. Opposing this contention, the learned Public Prosecutor would contend that, in this case, the petitioner was arrested from the spot while transporting the contraband. It is submitted further that, though the details regarding crime No. 202/2022 and the reasons for deletion of the 4[th] accused from the array of accused in the said crime are matters to be ascertained, going by the available materials in this crime, the petitioner's involvement in this crime is well established _prima facie_ and in such a case, the report filed in another crime to the effect that the 4[th] accused therein had no role in the said crime is of no avail to the petitioner, where Section 37 of the NDPS Act interdicts grant of bail. B.A.No. 10433 of 2022 5 8. On going through the prosecution records, 22.3 kilogram of Ganja was seized from an autorickshaw bearing registration No. KL-14-L-2060 driven by the 1[st] accused along with accused Nos. 2 and 3, that too at 20.30 hours on 04.02.2022. Regarding the source of the contraband, the 1[st] accused given statement before the Investigating Officer in this crime that the same was given by one Muhammed Kabeer N.M. Subsequently, as pointed out by the learned counsel for the petitioner, on recovery of commercial quantity of Ganja from the possession of Muhammed Kabeer N.M., crime No. 202/2022 was registered. As per the report in crime No. 202/2022 placed by the learned counsel for the petitioner, the 4[th] accused in the said crime, who is none other than the petitioner herein was deleted on the ground that the 4[th] accused has no role in the said crime. 9. But the said report does not suggest that, the petitioner herein, who was arrested from the spot along with the contraband in this crime has no role in transporting 22.3 kilogram of Ganja involved in this case. Even going by the confession statement given by the 1[st] accused in this crime, he did not say that accused Nos. 2 and 3 have no role in transport of the contraband and they were merely travelers, without knowing B.A.No. 10433 of 2022 6 storage of contraband in the autorickshaw. 10. Though the contentions raised by the learned counsel for the petitioner can be pressed into before the Special Court on merits, during trial, the contention without support of sufficient materials and based on mere feeble probabilities cannot have the effect of excluding the complicity of the petitioner in this case, where he was nabbed along with the contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in the facts of this case. 11. 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_ B.A.No. 10433 of 2022 7 _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._ 12. 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. 13. 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 B.A.No. 10433 of 2022 8 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. 14. 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. 15. 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 B.A.No. 10433 of 2022 9 (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]. Latest decision on this point is one reported in [2023 Crl.L J 799], _**Union of India v. Jitendra Giri**_ . 16. 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 B.A.No. 10433 of 2022 10 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. 17. 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. 18. 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** SK