Arshad Asharaf v. State of Kerala & The Station House Officer, Pattambi Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 BAIL APPL. NO. 3595 OF 2023 ``` ``` CRIME NO.283 OF 2023 OF PATTAMBI POLICE STATION, PALAKKAD PETITIONER/ACCUSED NO.5: ``` ``` ARSHAD ASHARAF, AGED 22 YEARS, S/O. ASHARAF, VATTAPARAMBIL HOUSE, AGALAD- POST, CHAVAKKAD, THRISSUR DISTRICT, PIN – 680506. BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL M.MAHIN HAMZA R.GAYATHRI ALWIN JOSEPH ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2THE STATION HOUSE OFFICER, PATTAMBI POLICE STATION, PALAKKAD DISTRICT, PIN – 679303. BY SENIOR PUBLIC PROSECUTOR SMT. T.V.NEEMA ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24.05.2023, THE COURT ON 02.06.2023 DELIVERED THE FOLLOWING: ``` B.A.No.3595/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.3595 of 2023_ _================================ Dated this the 2nd day of June, 2023_ ## _**O R D E R**_ Accused No.5 in Crime No.283 of 2023 of Pattambi Police Station, Palakkad, is the petitioner herein and he seeks regular bail in this petition filed under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the report of the Investigating Officer placed by the learned Public Prosecutor. 3. The prosecution case is that at about 13.45 p.m on 17.04.2023, an information was received by the Sub Inspector of Police, Pattambi Police Station to the effect that a person was B.A.No.3595/2023 3 engaged in sale of contraband near MES School, Pattambi. Accordingly, the Sub Inspector of Police and party reached the place at 14.15 hours and recovered 1.620 gram and 14.550 gram of MDMA from the possession of the 1st accused. Subsequent to the recovery, he was arrested and crime was registered alleging commission of offence punishable under Sections 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1987 (hereinafter referred to as `NDPS Act' for short). On later investigation it was revealed that the other accused also involved in this crime. Accordingly, accused 2 and 3, who were summoned and were nabbed in this crime. On further investigation, it has been revealed that the MDMA was arranged and handed over to the other accused by the 5th accused, who has been dealing MDMA in Bangalore. It was found further that accused No.1 contacted the 5th accused and as directed by the 1st accused, Rs.28,000/- was arranged by accused 1 to 3 together and transferred in the account of the 5th accused B.A.No.3595/2023 4 through the account of the 3rd accused and in turn, the contraband was purchased by the 5th accused using the said sum. Accordingly, the petitioner/5th accused was arrested on 17.04.2023 and has been in custody till now. 4. The learned counsel for the petitioner argued that nothing recovered from the conscious possession of the petitioner and the allegation against the petitioner is that the petitioner is the person, who had given the contraband which was seized from the 1st accused. According to the learned counsel for the petitioner, the materials available against the petitioner in this crime is the confession statement of the co-accused and call details. In fact the confession statement is inadmissible during trial and call details are feeble evidence to connect him with this crime. Therefore, the petitioner is innocent in this crime and holding so he is liable to be released on bail diluting the rigour under Section 37 of the NDPS Act. B.A.No.3595/2023 5 5. The learned Public Prosecutor pointed out that, apart from the confession statement given by the petitioner, the coaccused the Investigating Officer collector bank details of the 3rd accused and found that the 3rd accused transferred Rs.28,000/- to the account of the 5th accused by UPI transfer and in turn the contraband was arranged by the 5th accused using the said money. Therefore, _prima facie_ , materials are in abundance to see the complicity of the petitioner also. Therefore, he cannot be released on bail without satisfying the twin conditions specified under Section 37 of the NDPS Act. 6. On perusal of the available materials, as rightly argued by the learned Public Prosecutor, involvement of the petitioner is specifically made out. It is to be noted that apart from the confession statement of the co-accused, there is clinching evidence to connect the 5th accused with the transport of contraband and the money transaction for the same. Therefore, it cannot be held at this B.A.No.3595/2023 6 stage that the petitioner is innocent and he has no role in this occurrence. Since the prosecution case is well made out, this Court cannot grant regular bail to the petitioner without satisfying the twin conditions specified under Section 37 of the NDPS Act. 7. When the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. 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._ B.A.No.3595/2023 7 _(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 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 B.A.No.3595/2023 8 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 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**_ B.A.No.3595/2023 9 _**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 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 B.A.No.3595/2023 10 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. 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 B.A.No.3595/2023 11 petitioner must fail. Hence both the petitions stand dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.3595/2023 12 ## **`APPENDIX OF BAIL APPL. 3595/2023`** ``` PETITIONER's ANNEXURES ``` |`Annexure`|`1`|`TRUE COPY OF THE FIRST INFORMATION`| |---|---|---| |||`REPORT IN CRIME NO. 283 OF 2023 OF`| |||`PATTAMBI POLICE STATION, PALAKKAD`| |||`DISTRICT`| |`Annexure`|`2`|`TRUE COPY OF THE REMAND REPORT OF THE`| |||`ACCUSED NO.1 IN CRIME NO. 283 OF 2023 OF`| |||`PATTAMBI POLICE STATION, PALAKKAD`| |||`DISTRICT`| |`Annexure`|`3`|`TRUE COPY OF THE SEIZURE MAHAZAR IN`| |||`CRIME NO. 283 OF 2023 OF PATTAMBI POLICE`| |||`STATION, PALAKKAD DISTRICT`| |`Annexure`|`4`|`TRUE COPY OF THE REMAND REPORT OF THE`| |||`PETITIONER IN CRIME NO. 283 OF 2023 OF`| |||`PATTAMBI POLICE STATION, PALAKKAD`| |||`DISTRICT`| |`Annexure`|`5`|`TRUE COPY OF THE CIRCULAR DATED`| |||`20.04.2023 ISSUED BY THE PRINCIPAL,`| |||`ACHARYA INSTITUTE OF ALLIED HEALTH`| |||`SCIENCES, BANGALORE`| |`Annexure`|`6`|`TRUE COPY OF THE TIME TABLE OF BACHELORS`| |||`IN HOSPITAL ADMINISTRATION EXAMINATION`| |||`ISSUED BY THE RAJIV GANDHI UNIVERSITY OF`| |||`HEALTH SCIENCES, KARNATAKA`|