Anwar Sadath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941 Bail Appl.No.9514 OF 2019** **AGAINST THE ORDER/JUDGMENT IN SC 1701/2019 OF II ADDITIONAL DISTRICT COURT,TRIVANDRUM** **CRIME NO.6/2019 OF Trivandrum Excise Circle Office, Thiruvananthapuram** ## **PETITIONER/2nd ACCUSED:** **ANWAR SADATH AGED 31 YEARS S/O.ALI, CHERUTHADATHIL HOUSE, VAZHAKALA, KAKKANAD, ERNAKULAM DISTRICT- 682021.** **BY ADVS. SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN SRI.SAM M.THOMAS SRI.B.RAMAN PILLAI (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.** **SRI AJITH MURALI-PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 B.A.No.9514 of 2019 ## **ORDER** The petitioner is the second accused in the case S.T No.1701/2019 on the file of the Additional Sessions Court-II, Thiruvananthapuram. 2. The offences alleged against the petitioner are punishable under Sections 20(b)(ii)B, 20(b)(ii)C and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 3. The prosecution case is that, on 24.05.2019, at about 08.15 hours, the Excise Circle Inspector, Thiruvananthapuram intercepted the car KL-44C/1001 near Kazhakootam Junction in Thiruvananthapuram and on inspection of the car, 11.210 kilograms of hashish oil and also 2.530 kilograms of ganja, which were concealed in the door panel of the car and also in two secret chambers, were seized. The petitioner and the other accused who were travelling in the car were arrested from the spot. 4. Heard learned counsel for the petitioner and also 3 B.A.No.9514 of 2019 the learned Public Prosecutor. 5. The learned Public Prosecution has opposed the application for granting bail to the petitioner. 6. The petitioner had earlier filed an application for bail as B.A No.6100/2019 before this Court but it was dismissed by order dated 26.08.2019. This is the second application for bail filed by the petitioner. 7. While dismissing the earlier application for bail, this Court had observed that, bail cannot be granted to the petitioner in view of the embargo contained under Section 37 of the Act, particularly when there are materials to _primafacie_ connect the petitioner with the commission of the offences alleged. 8. Learned counsel for the petitioner has not pointed out any change in the aforesaid circumstance since the dismissal of the earlier application for bail filed by the petitioner except the fact that now final report (complaint) has been filed against the petitioner and the other accused in the case. 4 B.A.No.9514 of 2019 9. Section 37(1)(b) of the Act states that, notwithstanding anything contained in the Code of Criminal Procedure, 1973 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. 10. A plain reading of Section 37 of the Act would show that no person accused of an offence punishable under Section 19 or Section 24 or Section 27A of the Act and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application for bail. When the Public Prosecutor opposes the application, in order to grant bail, the Court 5 B.A.No.9514 of 2019 should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations in granting bail specified in clause (b) of sub-section (1) Section 37 are in addition to the limitations under the Code or any other law for the time being in force, on granting of bail. Section 37 of the Act curtails the freedom of the Court in granting bail and it creates restrictions on the power of the Court to relese a person accused of the offences specified under clause (b) of sub-section (1). 11. Apart from giving an opportunity to the Public Prosecutor to oppose the application, satisfaction of the court with regard to two matters is mandatory before granting bail to a person accused of the offences specified under clause (b) of sub-section (1) Section 37 of the Act. They are (i) reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) he is not likely to commit any offence while on bail. These two conditions are cumulative and not alternative. If either of these two conditions is not 6 B.A.No.9514 of 2019 satisfied, the bar operates and the accused cannot be released on bail. 12. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the Act. It means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both aspects, as noted above, is sine qua non for granting of bail to a person accused of the offences specified under clause (b) of sub-section (1) Section 37 of the Act. 13. However, while considering an application for bail with reference to Section 37 of the Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence 7 B.A.No.9514 of 2019 meticulously to arrive at a positive finding as to whether or not the accused has committed the offence alleged against him. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. 14. The aforesaid principles have been laid down by the Supreme Court in **Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798, Union of India v. Rattan Mallik : (2009) 2 SCC 624 and Union of India v. Niyazuddin : AIR 2017 SC 3932** . 15. Very recently, in **State of Kerala v. Rajesh: 2020 (1) KHC 557: MANU/SC/0084/2020** , the Apex Court has held as follows: _“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 of_ 8 B.A.No.9514 of 2019 _the Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with nonobstante 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. ......liberal approach in the matter of bail under the NDPS Act is indeed uncalled for”._ 16. The petitioner was travelling in the car from which the hashish oil and ganja were seized. He was arrested from the spot of the occurrence. Now after completing investigation, final report (complaint) has been filed against the petitioner and other persons. The prosecution has produced before the trial court materials to establish the offences alleged against the petitioner. In such circumstances, there are no reasonable grounds for believing that the petitioner is not guilty of the offences alleged against him. The twin conditions mentioned under Section 37 of the Act are not satisfied. 17. In the aforesaid circumstances, the application for 9 B.A.No.9514 of 2019 bail is liable to be dismissed. 18. Consequently, the prayer for releasing the petitioner on bail is rejected and the petition is dismissed. Sd/- **R. NARAYANA PISHARADI JUDGE** rpk