Anu Lakshmi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945** **BAIL APPL. NO. 3594 OF 2023** **CRIME NO.1540/2022 OF ERNAKULAM NORTH POLICE STATION** **AGAINST THE ORDER/JUDGMENTCRMC 32/2023 OF ADDITIONAL SESSIONS** **COURT (ADHOC)-II, ERNAKULAM** **PETITIONER/ACCUSED NO.3:** **ANU LAKSHMI, AGED 19 YEARS D/O. GIREESH, PARAYIL HOUSE, MANNAMKANDAM, VELLATHOOVAL VILLAGE, IDUKKI, KERALA, PIN - 685561** **BY ADVS. K.N.ABHILASH SUNIL NAIR PALAKKAT RITHIK S.ANAND ANU PAUL SREELAKSHMI MENON P.** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM, PIN - 682018** **SRI..P G MANU, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 3594 OF 2023** **2** ## **ORDER** Dated this the 24[th] day of May, 2023 This is the second application for regular bail filed under Section 439 of the Code of Criminal Procedure by the third accused in crime No.1540/2022 of Ernakulam Town North Police Station, Ernakulam. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor. 4. The prosecution allegation is that, at about 11.20 hrs on 17.12.2022, accused Nos.1 to 3 were found in possession of 120 gm of MDMA and they were nabbed redhandedly. Pursuant to arrest and recovery, crime, alleging commission of offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act' hereinafter), was registered. **BAIL APPL. NO. 3594 OF 2023** **3** 5. It is submitted by the learned counsel for the petitioner that, considering the tender age of the petitioner as 18 ½ years, she may be released on bail. 6. Whereas, the learned Public Prosecutor zealously opposed bail, pointing out the seriousness of the offences as well as involvement of commercial quantity of contraband. It is submitted that, in order to grant bail to an accused, who involved in possession of commercial quantity of contraband, this Court must satisfy the twin conditions provided under Section 37 of the NDPS Act. 7. On perusal of the report of the Investigating Officer and other materials, the prosecution case is well made out, _prima facie_ and the investigation is at the primitive stage. In fact, considering all these aspects in detail, the earlier bail application (BA.No.861/2023) was dismissed on 22.03.2023. No change in circumstances pointed out to take a different view. Moreover, last time, this Court directed the learned Public Prosecutor to produce Forensic Science Laboratory report. But **BAIL APPL. NO. 3594 OF 2023** **4** the learned Public Prosecutor submitted that the Forensic Science Laboratory report is not available. 8. In fact, in this matter, Section 37 of the NDPS Act interdicts grant of bail to the accused in a crime involving commercial quantity of contraband. 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 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_ **BAIL APPL. NO. 3594 OF 2023** **5** _law for the time being in force on granting of bail._ 9. 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. 10. 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 **BAIL APPL. NO. 3594 OF 2023** **6** 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 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 **BAIL APPL. NO. 3594 OF 2023** **7** 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]. The latest decision on this point is [2023 CriLJ 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 **BAIL APPL. NO. 3594 OF 2023** **8** 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. 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 application for regular bail at the instance of the petitioner must fail. **BAIL APPL. NO. 3594 OF 2023** **9** As per order dated 22.03.2023 in B.A.No.861/2023, this Court dismissed the regular bail plea at the instance of the petitioner herein. In fact, there is nothing substantiated to reconsider the regular bail plea at the instance of the petitioner. Therefore, for the same reasons, this bail application is also dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** nkr