Ajmal T.A @ Kuru v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944** **BAIL APPL. NO. 2139 OF 2023** **IN S.C.NO.24/2023 OF THE COURT OF SESSION, ERNAKULAM DIVISION CRIME NO.592 OF 2022 OF PALARIVATTOM POLICE STATION** ## **PETITIONER/ACCUSED NO.3:** **AJMAL T.A @ KURU SON OF ABDULLA K.S, THALANGARA WEST HILL, THALANGARA P.O, THALANGARA VILLAGE, KASARGOD (DIST), PIN - 671122 BY ADVS. V.S.MANSOOR AKHIL BINOY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR SR PP - T V NEEMA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 2139 of 2023 2 ## **ORDER** ## **Dated this the 21[st] 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 3[rd] accused in crime No.592/2022 of of Palarivattom Police Station, now pending as S.C No.24/2023 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act (Additional Sessions Court -VIII, Ernakulam). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the documents placed by the learned counsel for the petitioner and the case diary along with detailed report furnished by the Investigating Officer. 3. The prosecution case is that, at about 06.15 P.M on 09.06.2022, the Sub Inspector of Police, Palarivattom recovered 119.70 gram of Methamphetamine Hydrochloride from the laptop bag of 1[st] accused and also 19.85 gram of Methamphetamine from the Scooter belonged to him bearing registration No.KL-07-CD3360, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as NDPS Act). Accordingly, crime was registered alleging commission of offences B.A.No. 2139 of 2023 3 punishable under Sections 8(c), 22(c) and 29 of the NDPS Act. 4. When the 1[st] accused was questioned, he had given statement that, the contraband was supplied by the 2[nd] accused through the 3[rd] accused. Further investigation revealed that, there were constant calls in between the 2[nd] and 3[rd] accused and the Investigating Officer noticed 64 calls and also 6 calls just before the recovery. Placing reliance on those materials, the petitioner also was arrested and he has been in custody from 07.09.2022. 5. The learned counsel for the petitioner would submit that, the petitioner is absolutely innocent and merely relying on the confession statement of the 2[nd] accused, the petitioner was nabbed. Since, confession statement is inadmissible in evidence, the prosecution materials as against the petitioner is negligible and therefore, he deserves bail, in a case, where Final Report already filed. 6. Whereas the learned Public Prosecutor submitted that, based on the confession statement, given by the co-accused and as per the materials collected during the investigation including call details in between the 2[nd] and 3[rd] accused for 64 times during the period and 6 times on the date of occurrence, the petitioner was nabbed in this case. On investigation also, the allegations are B.A.No. 2139 of 2023 4 found to be true and accordingly Final Report also was filed. Therefore, grant of bail to the petitioner shall be subject to satisfaction of the conditions provided under Section 37 of the NDPS Act. 7. On perusal of the report of the Investigating Officer, it could be noticed that, on recovery of contraband to the tune of 119.70 gram of Methamphetamine Hydrochloride from the laptop bag of 1[st] accused and also 19.85 gram of Methamphetamine from the Scooter belonged by him, the 1[st] accused given statement that, the contraband was handed over by the 2[nd] accused. When, the 1[st] and 2[nd] accused were questioned, they have stated that, the 3[rd] accused is the person who handed over the contraband by describing the mobile number used by the 3[rd] accused to contact the 2[nd] accused. Accordingly, when the call details were verified, there were 64 calls in between the 2[nd] and 3[rd] accused and 6 calls as on 09.06.2022, just before the recovery of the contraband. That apart, it could be gathered from the case diary that, the petitioner herein is the person who was initially arrested in crime No. 893 of 2022 of Kalamassery Police Station, along with small quantity of contraband and his arrest in this crime was recorded while he was in custody in the above crime. Therefore, the B.A.No. 2139 of 2023 5 complicity of the petitioner is well made out, _prima facie_ . In such a case, absolute innocence as canvased by the learned counsel for the petitioner, cannot be considered at this stage. The petitioner can raise this contention during trial supported by evidence. 8. In fact, this Court must satisfy the twin conditions stipulated under Section 37 of the NDPS Act, while granting bail to an accused, who alleged to have possessed commercial quantity of contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in this case. 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_ B.A.No. 2139 of 2023 6 _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 believing that B.A.No. 2139 of 2023 7 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: (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. 2139 of 2023 8 (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**_ . 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 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. 2139 of 2023 9 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. Accordingly, this bail application stands dismissed. ## **Sd/-** **A. BADHARUDEEN JUDGE** SK