Anand v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 BAIL APPL. NO. 1706 OF 2023** ## **CRIME NO.273/2023 OF KOTTARAKKARA POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED (A2):** ANAND AGED 26 YEARS S/O ANILKUMAR, ANEESH BHAVAN, VAVARKONAM, KATTAYIKONAM P.O., AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN – 695584. BY ADVS. K.V.ANIL KUMAR SWAPNA VIJAYAN RADHIKA S.ANIL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN – 682031. SRI P G MANU, SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.03.2023, THE COURT ON 22.03.2023 DELIVERED THE FOLLOWING: B.A.No.1706/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.1706 of 2023_ _================================ Dated this the 22nd day of March, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the 2nd accused in Crime No.273/2023 of Kottarakkara Police Station, where the prosecution alleges commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act’ for short hereinafter). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary as such. 3. The prosecution allegations is that based on a secret information received to the effect that a youngster had been travelling along with MDMA in an A.C bus coming from B.A.No.1706/2023 3 Bangalore, when search was conducted, it was found that a youngster was carrying 2 bags, in front of Dhana Boutique on the eastern side of Plakkottu Castle building, on the opposite side of Kottarakkara private bus stand. On seeing the excise party, the petitioner attempted to run away. Thereafter, he was intercepted and on search 106 gram of MDMA was seized from his possession. Accordingly, crime was registered alleging commission of the above offence. Later, investigation revealed that the 1st accused along with the petitioner herein purchased MDMA from Bangalore on 26.01.2023 along with Vishnu and Anand and they used to share the profit out of the said business. Further investigation revealed that the 2nd and 3rd accused entrusted Rs.90,000/- to the 1st accused for the purchase of contraband. Further when search was conducted, an yellow plastic cover, 3 ball shaped packets to store MDMA tied with masking tape, were seized from the petitioner’s custody. 4. While pressing for regular bail to the petitioner, the B.A.No.1706/2023 4 learned counsel for the petitioner would submit that the petitioner is innocent and allegations against him are absolutely false. According to the learned counsel for the petitioner, commercial quantity of MDMA was seized from the possession of the 1st accused and the 1st accused has no connection with the 2nd accused. It is submitted that since materials to connect the petitioner in this crime is much less, rather negligible, other than the confession statement of the co-accused, the petitioner, who has been in custody from 29.01.2023, is liable to be released on regular bail. 5. Whereas, the learned Public Prosecutor pointed out that as per the statement given by the 1st accused and also from the materials collected during investigation it has been revealed that the 1st accused purchased MDMA by using the money given by the 2nd and 3rd accused. The 1st accused was arrested while carrying the contraband, jointly purchased by the 2nd and 3rd accused, when he was transporting the same. The learned Public Prosecutor also placed the details of call records between the petitioner and the B.A.No.1706/2023 5 other accused during the relevant period, to substantiate the involvement of the petitioner in this crime. 6. On perusal of the case diary, it is true that, initially contraband to the tune of 106 gram of MDMA was seized from the possession of the 1st accused and later investigation revealed that the 1st accused purchased MDMA by using he money handed over by the 2nd and 3rd accused and there are consistent calls in between the 1st accused, 2nd accused and 3rd accused during the relevant period. Investigation in this crime is at the very initial stage. Therefore, further details are yet to be obtained by the Investigating Officer. Further in cases involving commercial quantity of contraband this Court cannot grant regular bail to the petitioner without satisfying the conditions as provided under Section 37 of the NDPS Act. 7. No doubt, when the prosecution alleges possession of commercial quantity of contraband by the accused, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: B.A.No.1706/2023 6 _“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 B.A.No.1706/2023 7 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 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. 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 B.A.No.1706/2023 8 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 B.A.No.1706/2023 9 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 [2023 Cri.LJ 799], _**Union**_ . _**of India v. Jitentra 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. B.A.No.1706/2023 10 13. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, this application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. **==> picture [213 x 37] intentionally omitted <==** _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.1706/2023 11 ## **APPENDIX OF BAIL APPL. 1706/2023** PETITIONER'S ANNEXURES Annexure-A A TRUE COPY OF THE FIR IN CRIME NO. 273/2023 OF KOTTARAKARA POLICE STATION. Annexure-B A TRUE COPY OF THE ORDER DATED 20.02.2023 IN CRL.M.C. NO. 328 / 2023 OF THE PRINCIPAL SESSIONS COURT, KOLLAM. Annexure-C A TRUE COPY OF THE WEDDING INVITATION CARD OF PETITIONER'S ELDER BROTHER.