Ansal v. State of Kerala and Station House Officer, Ernakulam North Police Station

1 Bail Application No. 11213 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945 BAIL APPL. NO. 11213 OF 2023 ``` ``` CRIME NO.1168/2022 OF Ernakulam North Police Station, ``` ``` Ernakulam ``` ## **`PETITIONER/S:`** ``` ANSAL AGED 21 YEARS S/O UMMER, KEERUPARAMBU HOUSE, MADAVANA, PANANGAD, ERNAKULAM, PIN - 682506 BY ADV V.A.VINOD ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER ERNAKULAM NORTH POLICE STATION, ERNAKULAM, PIN - 682018 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 11213 of 2023 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 11213 of 2023** **-----------------------------------** **Dated this the 9[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in crime No.1168/2022 of the Ernakulam North Police Station, registered against the accused (two in number), alleging them to have committed the offences punishable under Secs.22(b) (ii) (C) and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short, ‘NDPS Act’). The petitioner was arrested on 5.10.2022. 3 Bail Application No. 11213 of 2023 2. The prosecution case, in brief, is that: On 5.10.2022 at around 2.20 p.m, the accused were found in possession of 2665 grams of hashish oil. Thus, they have committed the above offences. 3. Heard; Sri.V.A Vinod, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. He is only a 21 year old boy. He has been languishing in jail since 5.10.2022, which is more than 16 months now. The 4 Bail Application No. 11213 of 2023 investigation is complete and the final report has been laid. Therefore, the petitioner’s continued detention is not necessary. Hence the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She contended that taking into account the huge commercial quantity that is involved, the petitioner may not be let off on bail because there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. The prosecution allegation is that the petitioner and the accused were found in possession of 2665 5 Bail Application No. 11213 of 2023 grams of hashish oil. Thus, substantial commercial quantity of hashish oil has been seized from them. 7. 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 with bail applications by holding ## as follows: “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”. 6 Bail Application No. 11213 of 2023 ## 8. Similarly, in **Kalyan Chandra Sarkar v. Rajesh** ## **Ranjan,** [(2004) 7 SCC 528], the Honourable Supreme ## Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338.) ## 9. 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: 7 Bail Application No. 11213 of 2023 “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.” ## 10. 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 8 Bail Application No. 11213 of 2023 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. 11. 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”. 12. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, 9 Bail Application No. 11213 of 2023 ## after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 13. On a meticulous scrutiny of the factual matrix, for the purpose of bail and the law referred to above and taking into account the gravity of the accusation levelled against the petitioner, severity of the punishment that can be imposed on him in the event of him being found guilty, the huge commercial quantity of contraband that was allegedly seized from him, I am at this stage not satisfied that the petitioner is not guilty 10 Bail Application No. 11213 of 2023 for the offence alleged against him and there is no likelihood of him committing a similar offence if he is released on bail. Thus, I do not find any cogent reason or valid ground to dilute the rigour under Sec.37 of the Act. The application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. sd/sks/9.1.2024 **C.S.DIAS, JUDGE** 11 Bail Application No. 11213 of 2023 ## **`APPENDIX OF BAIL APPL. 11213/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1CERTIFIED COPY OF THE ORDER IN CRL M.P NO 2633/2023 DATED 13.07.2023 ```