Akhil Raj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 1741 OF 2024 ``` ``` CRIME NO.41/2023 OF VADANAPPALLY POLICE STATION, THRISSUR AGAINST THE ORDER DATED 09.02.2024 IN CRMP NO.687 OF 2024 OF DISTRICT COURT & SESSIONS COURT, THRISSUR ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` AKHIL RAJ, AGED 25 YEARS S/O RAJAN, NEDIYIRIPPIL (H), KAZHIMBRAM, THEKKU DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680506 BY ADVS. SRI.MITHUN BABY JOHN SMT.N.U.HARIKRISHNA ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR.PP.SMT.SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.1741 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 29[th] day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, ‘Code’) by the 1[st] accused in Crime No.41/2023 of the Vadanappilly Exchange Range Office, Thrissur, which is registered against the accused for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested and remanded to judicial custody on 20.12.2023. 2. The gist of the prosecution case is that: on 19.12.2023, the Detecting Officer and party received secret information that the accused were dealing in psychotropic substances. Accordingly, the Detecting Officer and party proceeded to the house of the 1[st] ``` B.A.No.1741 of 2024 ``` ``` 3 ``` accused and conducted a search, and 3.75 grams of MDMA was seized from the trouser pocket of the 1[st] accused. While they were in the house of the 1[st] accused, a Post Lady delivered a Tapal (postal cover), which was addressed to the 2[nd] accused with the phone number of the 1[st] accused. In the presence of the Post Lady, the Detecting Officer opened the cover and found 10.44 grams of MDMA in the cover. In the interrogation of the Post Lady, she stated that even though the cover was addressed to the 2[nd] accused, when she telephoned the number that was furnished on the postal cover, the person who picked the call told her to deliver the contraband at the residence of the 1[st] accused. Accordingly, she went to the residence of the 1[st] accused and delivered the parcel. The accused 1 and 2 have conspired and have dealt with the contraband articles. Thus, the accused have committed the above offences. ``` B.A.No.1741 of 2024 ``` ``` 4 ``` 3. Heard; Sri.Mithun Baby John, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the crime. Even assuming the prosecution allegation is true, only 3.75 grams of MDMA was recovered from the conscious possession of the petitioner. The other 10.44 grams of MDMA was recovered from a parcel, that was addressed to the 2[nd] accused. The petitioner is in no way connected with the parcel addressed to the 2[nd] accused. Now, as per the chemical analysis report submitted by the Chemical Examiner’s Laboratory Department, Ernakulam dated 17.02.2024, it has turned out that the psychotropic substance is a ``` B.A.No.1741 of 2024 ``` ``` 5 ``` mixture of MDMA and cocaine. The exact quantity of the two contraband articles is not specified in the report. Therefore, the contraband articles have to be treated as that of an intermediate quantity. The petitioner has to be given the benefit of doubt. In any given case, the petitioner has been in judicial custody since 20.12.2023, the investigation in the case is complete, recovery has been effected and the final report has been laid on 29.05.2024. Therefore, the application may be allowed. 5. The learned Public Prosecutor stoutly opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that 3.75 grams of MDMA was recovered from the body of the petitioner and 10.44 grams of MDMA was recovered from the parcel that was brought by the Post Lady to the residence of the petitioner. Therefore, a total of 14.19 grams of MDMA was ``` B.A.No.1741 of 2024 ``` ``` 6 ``` seized, which is of a commercial quantity. The Post Lady has clearly testified that even on earlier occasions, she had delivered postal articles addressed to the 2[nd] accused at the residence of the petitioner, as instructed by the petitioner. Even though, as per the chemical analysis report, there is a mixture of MDMA and cocaine, in view of the law laid down by the Hon’ble Supreme Court in **Hira Singh & Anr. v. Union of India & Anr** (2020 (2) KHC 551) and the Division Bench decision of this Court in **Yethul vs. State of Kerala** [2023 (4) KLT 115], the mixture has to be treated as the graver quantity of contraband. Hence, the contraband is to be treated as MDMA. The investigation has revealed that the petitioner and the 2[nd] accused had conspired to deal in psychotropic substances. The rigour under Section 37 of the Act applies to the facts of the case. Moreover, the petitioner, is person with criminal ``` B.A.No.1741 of 2024 ``` ``` 7 ``` antecedents, as he is an accused in Crime No.108 of 2017 and 727 of 2019 of the same Police Station. Therefore, the petitioner fails to qualify the second limb of Section 37 of the Act as laid down by the Hon’ble Supreme Court in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh** [2023 KHC 6545]. Hence, the application may be dismissed. 6. The prosecution allegation is that, based on a secret information, the Detecting Officer and party conducted a search at the residence of the petitioner and seized 3.75 grams of MDMA from his conscious possession. While the search was going on, a Post Lady delivered a Tapal containing 10.44 grams of MDMA. Accordingly, a total quantity of 14.19 grams of MDMA was seized in the crime. The learned counsel for the petitioner contended that there is no material to establish that the parcel was addressed to the petitioner. The learned Public Prosecutor refuted ``` B.A.No.1741 of 2024 ``` ``` 8 ``` the submission and stated that the Post Lady has clearly testified that she had delivered the parcel to the postal address of the petitioner as instructed by him over mobile phone. The Post Lady had earlier also delivered parcels addressed to the 2[nd] accused to the petitioner. 7. The trump card of the learned counsel for the petitioner is that since the contraband has turned out to be a mixture of MDMA and cocaine, the contrabands have to be treated separately. Then, only an intermediate quantity of the two contrabands are involved in the case. Hence, the rigour under Section 37 of the Act does not apply to the facts of the case. In dealing with an identical situation a three Judge Bench of the Hon’ble Supreme Court in **Hira Singh‘s** case (supra) has in explicit terms held that when there is a a mixture of two or more contrabands, the entire contraband has to be treated as graver ``` B.A.No.1741 of 2024 ``` ``` 9 ``` contraband article. Therefore, even though there is a mixture of MDMA and Cocaine, since MDMA is the graver contraband, the mixture has to be treated as MDMA. The same view has been followed by a Division Bench of this Court in **Yethul** ’s case. 8. In the case on hand, since the contraband is a mixture of MDMA and cocaine, the contraband is to be treated as MDMA. As the quantity is 14.19 grams of MDMA, the same is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 9. It is well settled in **Union of India v. MD Nawaz Khan** [2021 KHC 6503] and a catena of decisions that any violation of search and seizure is a matter that is to be determined after trial and not at the nascent stage of considering a bail application. Thus, without expressing anything on the merits of the contentions regarding the irregular search and ``` B.A.No.1741 of 2024 ``` ``` 10 ``` seizure conducted by the respondents, I leave open the said question. 10. In addition to the same, the petitioner is a person with criminal antecedents, as he is involved in two other cases. Thus, the petitioner has failed to dilute the second limb of the Section 37 of the Act as laid down in case. **Dheeraj Kumar Shukla’s** 11. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable 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 ``` B.A.No.1741 of 2024 ``` ``` 11 ``` 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail”. 12. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court 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, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. ``` B.A.No.1741 of 2024 ``` ``` 12 ``` 13. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme 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”. ## 14. In **State of Kerala and others v. Rajesh** **and others** [(2020) 12 SCC 122], the Honourable Supreme Court held 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 ``` B.A.No.1741 of 2024 ``` ``` 13 ``` followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing 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 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.’ ``` B.A.No.1741 of 2024 ``` ``` 14 ``` 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 socioeconomic 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 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 ``` B.A.No.1741 of 2024 ``` ``` 15 ``` 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”. 15. As observed in **Rajesh** 's case (supra), in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 16. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters ``` B.A.No.1741 of 2024 ``` ``` 16 ``` ## for Courts while dealing with applications for bail in the following lines: “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”. 17. Indisputably, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 18. On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials ``` B.A.No.1741 of 2024 ``` ``` 17 ``` placed on record, and on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioner, the potential severity of the punishment that can be imposed on the petitioner, the commercial quantity of the contraband involved in the case and the prima facie material that shows the petitioner's involvement in the crime, I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence if he is enlarged on bail. The petitioner has not made out any valid ground to dilute the rigour under Section 37 of the Act. The application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS** **JUDGE** NAB