Alif Khan v. State of Kerala

_B.A No.1183/ 2024 1_ ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 BAIL APPL. NO. 1183 OF 2024 ``` ``` CRIME NO.7/2023 OF Devikulam Excise Range Office, Idukki ``` ``` AGAINST THE ORDER DATED 24.11.2023 IN Bail Appl. NO.9904 OF 2023 OF HIGH COURT OF KERALA ``` ``` PETITIONER/ACCUSED: ``` ``` ALIF KHAN AGED 25 YEARS PATTATHU HOUSE, POREDOM P.O, CHADAYAMANGALAM, KOLLAM, PIN – 691534. ``` ``` BY ADVS. ANEESH K.R SAURAV B. LIA GEORGE ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 2THE EXCISE INSPECTOR EXCISE RANGE OFFICE, DEVIKULAM, IDUKKI, PIN – 685613. ``` ## **`SENIOR PUBLIC PROSECUTOR SRI K DENNY DEVASSY`** ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23.02.2024, THE COURT ON 11.03.2024 DELIVERED THE FOLLOWING: ``` _B.A No.1183/ 2024 2_ _**“CR”**_ ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A No.1183 of 2024_ _================================ Dated this the 11th day of March, 2024_ ## _**O R D E R**_ This is the fourth bail application filed by the sole accused in crime No.7/2023 of Devikulam Excise Range, Idukki under Section 439 of the Code of Criminal Procedure. Earlier 3 bail applications, viz. B.A.Nos.1043/2023, 6995/2023 and B.A.No.9904/2024 were dismissed as per Annexures A1, A2 and A3 orders. While dismissing the third bail application, viz. B.A.No.9904/2024, this Court extracted the reason for dismissal of the earlier applications as under: _“This is the third bail application filed by the sole accused in crime No.7/2023 of Devikulam Excise Range, Idukki under Section 439 of the Code of Criminal Procedure._ _2. The petitioner had filed two bail applications earlier seeking regular bail, vide B.A. Nos.1043/2023 and 6995/2023, those petitions were dismissed for the reasons stated in paragraphs 2 to 14 of Annexure A1, order in B.A.No.1043/2023. The same_ _B.A No.1183/ 2024 3_ _are extracted hereunder :_ _“2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary along with detailed report submitted by the Investigating Officer._ _3. In this matter, the prosecution alleges commission of offences punishable under Sections 20(b)(ii)(A) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act'). The allegation of the prosecution is that, at about 3.20 pm on 25.01.2023, the accused was found in possession of 7 gram of dry Ganja and 0.126 gram of LSD (7 stamps of LSD) near Velmudy Kara, Munnar, while the petitioner was transporting the same on a motor bike bearing registration No.KL82-1280, against the prohibitions contained in the NDPS Act. Accordingly the accused was nabbed and the contraband was seized. Pursuant to the recovery and arrest, crime alleging commission of the above offences was registered and is on investigation._ _4. The learned counsel for the petitioner would submit that, the petitioner is innocent and the petitioner is a 25 year old person. Therefore, taking note of the custody of the petitioner from 25.01.2023 and the progress of investigation, he may be enlarged on bail._ _5. While opposing grant of bail to the petitioner, the learned Public Prosecutor would submit that, red handed recovery of commercial quantity of contraband led to registration of this crime and the investigation is on the extreme primitive stage. Further, it is submitted that, in order to grant regular bail to the petitioner, who alleged to have possessed commercial quantity of contraband, twin conditions provided under Section 37 of the NDPS Act must be satisfied._ _6. On perusal of the prosecution records, commercial quantity of contraband to the tune of 7 gram of dry Ganja and 0.126 gram of LSD (7 stamps of LSD) recovered red handedly from the petitioner and in such a case, 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._ _7. 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_ _B.A No.1183/ 2024 4_ _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._ _8. 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. 9. 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 offence while on bail._ _9. 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._ _B.A No.1183/ 2024 5_ _10. 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._ _11. 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 [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._ _12. 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._ _13. Thus, while granting bail to an accused, who alleged to have_ _B.A No.1183/ 2024 6_ _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._ _14. 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._ _The earlier two bail applications filed by the petitioner were dismissed, holding that the rider under Section 37 of the Narcotic Drugs and Psychotropic Substances Act could not be diluted in a case involving commercial quantity. Since there is no reason otherwise established as a change in circumstances to grant bail in this petition, this petition must fail. Therefore, the petition stands dismissed.”_ 2. Now, the learned counsel for the petitioner argued that since the petitioner has been in custody for the last 375 days (starting from 25.01.2023), he deserves bail, since trial not started yet and considering the status of the petitioner as a first time offender. The thrust of this argument is based on the decisions in _**Fasil** v._ _**State of Kerala**_ reported in [2023 (3) KHC 212 : 2023 KHC OnLine 321] and _**Jijendran C.M** . v._ _**State of Kerala**_ reported in [2023 (3) KHC 575 : 2023 KHC OnLine 320 : 2023 KER 23183]. 3. Whereas the learned Public Prosecutor strongly opposed bail on the submission that commercial quantity of contraband was involved and therefore the petitioner could not be released on bail without diluting rider under Section 37 of the NDPS Act. _B.A No.1183/ 2024 7_ 4. In the decision reported in [2024 KHC 142 : [2024 (2) KHC 218 : 2024 KER 13405], _**Muhammed Kaiz v. State of Kerala**_ , this Court considered the impact of Section 37 of the NDPS Act in view of the divergent decisions in this regard with particular reference to the 3 Judge Bench of the Apex Court reported in [2022 SCC OnLine 929], _**Vijay Madanlal Chaudhary v. Union of India**_ and held that when an accused alleged to have committed offences involving commercial quantity of contraband, where the rider under Section 37 of the NDPS Act would apply, length of period of custody, or the fact that charge sheet has been filed and trial has commenced or not commenced, are not considerations that could be treated as persuasive for granting bail diluting the rider under Section 37 of the NDPS Act. Therefore, this Court held that the decision in _**Fasil**_ **’** s case ( _supra_ ) is not good law. Therefore, the ratio in _**Fasil**_ ’s case ( _supra_ ) and other decisions holding the same view, could not be followed. It is noted that in the decision in _**Jijendran**_ ’s case ( _supra_ ) also, this Court applied some what same ratio in **Fasil** ’s case ( _supra_ ). In view of the law laid down in _**Vijay Madanlal Chaudhary**_ ’s case ( _supra_ ), _**Jijendran**_ ’s case ( _supra_ ) also not good law to be followed. Thus, the fourth bail application filed by the petitioner, merely on _B.A No.1183/ 2024 8_ the ground that he completed one year and more in custody, cannot be considered, since the rider under Section 37 of the NDPS Act could not be diluted. Therefore, this petition must fail and is dismissed accordingly. Registry is directed to forward a copy of this order to the Sessions Courts and Special Courts with direction not to follow ratio in _**Fasil**_ ’s case ( _supra_ ) and _**Jijendran**_ ’s case ( _supra_ ) and to follow the ratio in _**Vijay Madanlal Chaudhary**_ ’s case ( _supra_ ). _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_