Anwar Salih.K.P. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 BAIL APPL. NO. 1656 OF 2024 ``` ``` CRIME NO.396/2023 OF PANTHEERANKAVU POLICE STATION, ``` ## **`KOZHIKODE`** ``` AGAINST THE ORDER DATED IN SC NO.138 OF 2023 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA ``` ## **`PETITIONER/ACCUSED 1:`** ``` ANWAR SALIH.K.P, AGED 27 YEARS SON OF HAMSA KOYA,KALATHUMKANDI HOUSE, FEROKE.P.O, KOZHIKODE, PIN - 673631 ``` ``` BY ADVS. A.ARUNKUMAR S.SHYAM KUMAR SACHIN GEORGE ARAMBAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROSECUTOR SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1656 of 2024 ## -:2:- Dated this the 3[rd] day of June, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime. No.396/2023 of the Pantheerankavu Police Station, Kozhikode, registered against the accused (2 in number) for allegedly committing the offence punishable under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 01.06.2023. 2. The essence of the prosecution case is that: on 01.06.2023, at around 15.50 hours, the accused were found in conscious possession of 53.29 grams of MDMA from a room in a hotel and also from a car bearing registration No. KL 64 F 9600. Thus, the accused have committed the above offences. B.A.No.1656 of 2024 -:3:- 3. Heard; Sri.Arunkumar. A., the learned counsel appearing for the petitioner and Smt. Neema. T.V, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. There are no incriminating materials to substantiate the petitioner’s involvement in the case. In any given case, the petitioner has been in judicial custody for the last one year, the investigation in the case is practically complete, and the final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the petitioner and other accused were found in conscious possession of a commercial quantity of contraband. Moreover, the B.A.No.1656 of 2024 ## -:4:- petitioner is a person with criminal antecedents since he is involved in Crime No. 799/2021 of the Medical College Police Station, Kozhikode. The investigation in the case is complete, and the final report has been laid before the Jurisdictional Court on 27.11.2023. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. 6. On an evaluation of the materials placed on record, it can be seen that the prosecution allegation against the accused is that they were found in conscious possession of 53.29 grams of MDMA, which has now turned out to be methamphetamine as per the chemical analysis report. Yet, the contraband is of commercial quantity. 7. 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 B.A.No.1656 of 2024 ## -:5:- ## profitable to extract Section 37, which reads as follows; “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 sub-section (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.” 8. 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 B.A.No.1656 of 2024 ## -:6:- offence under the Act is subject to provisions contained 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. 9. 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”. ## 10. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: B.A.No.1656 of 2024 ## -:7:- “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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 11. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 12. 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 B.A.No.1656 of 2024 ## -:8:- 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”. 13. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity, and nature of the accusations leveled against the petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband involved in the case, and the fact that the petitioner is a person with criminal antecedents, I am of the view that there are no reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out reasonable grounds to dilute the rigour under Section 37 of B.A.No.1656 of 2024 ## -:9:- the Act. Therefore, I hold that the application is meritless and is only to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/03.06.24