Ajith v. State of Kerala; Vishnu v. State of Kerala; Samuel v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 ``` ``` BAIL APPL. NO. 9056 OF 2023 ``` ``` CRIME NO.1102/2023 OF KARUNAGAPALLY POLICE STATION, KOLLAM ``` ## `PETITIONER:` ``` AJITH, AGED 26 YEARS, S/O BABU, MUTHIRAKKUNNATHU VEETIL, AYATHIL VALIYAMADAM, KALLUMTHAZHAM CHERRY, KILIKOLLOOR VILLAGE, KOLLAM TALUK, KOLLAM, PIN – 691004 ``` ``` BY ADV M.R.SASITH ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA TV ,SR PP SMT SEETHA S ,SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.01.2024, ALONG WITH BAIL APPL..9082/2023, 9418/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.9056, 9082 & 9418/2023 -:2:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 ``` ``` BAIL APPL. NO. 9082 OF 2023 ``` ``` CRIME NO.1102/2023 OF KARUNAGAPALLY POLICE STATION, KOLLAM ``` ``` PETITIONER: ``` ``` VISHNU AGED 29 YEARS S/O RAMESHAN, DHWARAKA, ADINADU SOUTH, ADINADU VILLAGE, KATTILKADVU P.O., KARUNAGAPPALLY TALUK, KOLLAM, PIN – 690542 ``` ``` BY ADV M.R.SASITH ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR PP SMT NEEMA TV ,SR PP SMT SEETHA S ,SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.01.2024, ALONG WITH BAIL APPL..9056/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.9056, 9082 & 9418/2023 -:3:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 ``` ``` BAIL APPL. NO. 9418 OF 2023 ``` ``` CRIME NO.1102/2023 OF KARUNAGAPALLY POLICE STATION, KOLLAM ``` ``` PETITIONER: ``` ``` SAMUEL AGED 24 YEARS S/O SUDHAKARAN, KRISHNA NIVAS, NAMBARUVIKALA, ALUMKADAVU P.O, KARUNAGAPPALY, KOLLAM, PIN – 691582 ``` ``` BY ADV M.R.SASITH ``` ## `RESPONDENT/S:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR PP SMT NEEMA TV ,SR PP SMT SEETHA S ,SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.01.2024, ALONG WITH BAIL APPL..9056/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.9056, 9082 & 9418/2023 -:4:- Dated this the 11[th] day of January,2024 ## **C O M M O N O R D E R** As these bail applications are filed by the accused in the same crime, they are being considered and disposed of by this common order. 2. B.A.Nos.9082,9056 & 9418/2023 are filed by the accused Nos.2, 3 & 5, respectively, in Crime No.1102/2023 of Karunagappally Police Station, Kollam, registered against the accused (five in number) alleging them to have committed the offence punishable under Sections 22(c), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The accused Nos.2, 3 & 5 were arrested on 15.08.2023, 26.08.2023 & 30.08.2023, respectively. 3. The gist of the prosecution case, is that: On 18.07.2023, at around 19.10 hours, the first accused was found in possession of 728.42 grams of MDMA. In B.A.Nos.9056, 9082 & 9418/2023 -:5:- the investigation, it was revealed that the accused Nos.1 to 5 conspired to purchase the above contraband article and there were huge financial transactions between them and an African Nation for purchasing the contraband article. Thus, the accused have committed the above offence. 4. Heard; Sri. M.R. Sasith, the learned counsel appearing for the petitioners in all the cases and the learned Public Prosecutors appearing for the respondent – State. 5. The learned counsel appearing for the petitioners strenuously argued that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated solely on the basis of the confession statement allegedly made by the first accused, who was the only person found in possession of the contraband article. There is nothing to connect the petitioners with the above crime. The B.A.Nos.9056, 9082 & 9418/2023 -:6:- investigation in the case is practically complete and the petitioners are in detention since August,2023. The petitioners’ further detention in the crime is unnecessary. They are willing to co-operate with the Investigating Officer and to abide by any stringent condition that may be imposed by this Court. The learned counsel also relied on the decision of this Court in **Amal v. State of Kerala** [B.A.No.2776/2023] and contended that, since there is nothing to link the petitioners with the first accused, the petitioners are entitled to the benefit of a similar order. Hence, the applications may be allowed. 6. The learned Public Prosecutors seriously opposed the applications. They contended that the investigation prima-facie reveals that the contraband article was seized from the first accused. There were series of transactions between the first accused and the third accused, who is the brother-in-law of the first B.A.Nos.9056, 9082 & 9418/2023 -:7:- accused. The call details reveal that there were frequent communications between the accused. An amount of Rs.3,10,000/- was transferred from the account of the third accused to an African National, in whose account there is a balance of Rs.5 crore. The fourth accused is the wife of the third accused. Similarly, there are transactions between the second accused and third accused. The second accused is a person with criminal antecedents, since there are three cases registered against him. Likewise, an amount of Rs.4,68,000/- was transferred from the account of the fifth accused to the first accused through 39 UPI transactions. The investigation is in progress. The source of the contraband article is under investigation. The rigour under Section 37 of the NDPS Act applies on all force in the case on hand. Hence, the applications may be dismissed. 7. Section 37 of the Narcotic Drugs and B.A.Nos.9056, 9082 & 9418/2023 -:8:- Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving an offence under the Act. It is apposite 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 he is not likely to commit any offence while on bail.** (2) The limitations on granting of bail specified in clause (b) of subsection (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.” (highlighted) 8. A reading of the above provision indicates that a person accused of an offence under Sections 19, 24 and 27-A of the NDPS Act and involving commercial quantity shall not be released on bail unless the court B.A.Nos.9056, 9082 & 9418/2023 -:9:- 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, an accused alleged to have committed an offence under the NDPS Act is entitled to be enlarged on bail not only subject to provisions under Section 439 of the Code but also on satisfying the twin conditions contemplated under Section 37 of the NDPS Act. 9. The Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] has interpreted the expression ‘reasonable grounds’ under Section 37 of the Act in the following manner: “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. This Court reminisces the decision in **State of Kerala and others v. Rajesh and others** [(2020) B.A.Nos.9056, 9082 & 9418/2023 -:10:- 12 SCC 122], an appeal arising from a bail order passed by this Court granting bail to a person accused of an offence under the Act, wherein the Honourable Supreme Court went to hold 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 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 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 B.A.Nos.9056, 9082 & 9418/2023 -:11:- 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 respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic 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 limitations contained B.A.Nos.9056, 9082 & 9418/2023 -:12:- 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. 20. 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 Section 37 that in addition to the limitations provided under the CrPC, 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. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a _sine qua non_ for granting bail to the accused under the NDPS Act”. 11. In addition to the above precedents, 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 B.A.Nos.9056, 9082 & 9418/2023 -:13:- ## with bail applications by holding thus: “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 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”. 12. In the instant cases, the petitioners have been arrested on the ground that they are involved in the above crime, wherein 728.42 grams of MDMA has been seized from the first accused. The materials placed on record, prima-facie establish that there are reasonable grounds to believe that the petitioners are guilty of the offences alleged against them, and there is a likelihood B.A.Nos.9056, 9082 & 9418/2023 -:14:- of them committing a similar offence, if they are released on bail. 13. On an appreciation of the materials placed on record and the law referred to above, considering the gravity, nature and seriousness of the accusation levelled against the petitioners, the potential severity of the punishment that can be imposed on them, in the event of them being found guilty, I am at this stage not satisfied that the petitioners have diluted the rigour under Section 37 of the NDPS Act. The applications lack merits and are only to be dismissed. Resultantly, the applications are dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/11.01.24 //True copy// P.A. To Judge