Arshad v. State of Kerala

## **`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. 3047 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTCRMP 881/2023 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM CRIME NO.711/2022 OF AYIROOR POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/2ND ACCUSED:`** ``` ARSHAD AGED 26 YEARS S/O SHAFI, CHARUVILA PUTHEN VEEDU, KARUMBUVILA DESOM, NJARAYILKONAM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM, PIN – 695603. BY ADV M.DINESH ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. BY SENIOR PUBLIC PROSECUTOR SMT. T.V.NEEMA ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26.05.2023, THE COURT ON 02.06.2023 DELIVERED THE FOLLOWING: ``` B.A.No.3047/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.3047 of 2023_ _================================ Dated this the 2nd day of June, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the 2nd accused in Crime No.711/2022 of Ayiroor Police Station where the accused alleged to have committed offences punishable under Sections 22(c), 27 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act' for short). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. Perused the relevant documents produced by the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. The prosecution case is that at about 14.58 hours on B.A.No.3047/2023 3 13.09.2022, the Sub Inspector of Police, Ayiroor Police Station, got reliable information that 4 persons were in possession of MDMA for the purpose of sale and use, near bus stand waiting shed, Edava. On such information, after complying the statutory mandate, when the police party reached the place of occurrence, it was found that the accused jointly possessed 94 gram and 200 mm of MDMA. Accordingly, the said contraband along with 3 mobile phones, purse, Aadhar card and Rs.500/- note were recovered from the joint possession of the accused. Pursuant to recovery and arrest of the accused, crime alleging commission of offences punishable under Sections 22(c), 27 and 29 of the NDPS Act was registered. 4. The learned counsel for the petitioner would submit that the petitioner is innocent and nothing recovered from his possession. Therefore, the petitioner, who has been in custody from 13.09.2022, deserves bail diluting the rider under Section 37 of the NDPS Act. 5. The learned Public Prosecutor would submit that B.A.No.3047/2023 4 recovery was from the joint possession of the accused and the information received by the police was also to the effect that 4 persons, including the petitioner, jointly possessed the MDMA for the purpose of sale and use. Therefore, the petitioner’s complicity is at par with the other accused and there is no reason to dilute his complicity. It is also pointed out that thereafter it was revealed that accused 5 to 9 were also involved in this crime and they have been continuously engaged in possession and sale of the narcotic substances. 6. I have perused the copy of the mahazar along with the available materials to appraise the contention raised by the learned counsel for the petitioner that nothing was recovered from the possession of the petitioner. As per the mahazar it is discernible that recovery was effected while accused 1 and 2 were jointly possessing and engaging in sale of the same. Accordingly they were arrested red-handedly and in such a case, there is no reason to hold that the petitioner is innocent and as such the rigour under Section 37 of the NDPS Act is liable to be diluted in B.A.No.3047/2023 5 the present case. 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._ _(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 B.A.No.3047/2023 6 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 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 B.A.No.3047/2023 7 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 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: B.A.No.3047/2023 8 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 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 B.A.No.3047/2023 9 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. The ratio in [2023 (3) KHC 212], _**Fasil v. State of Kerala**_ also cannot be applied to the facts of this case. Therefore, this application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.3047/2023 10 ## **`APPENDIX OF BAIL APPL. 3047/2023`** ``` PETITIONER’S ANNEXURES ``` ``` Annexure 1 ``` ``` FREE COPY OF THE ORDER IN CRL.M.P. NO.881/2023 DATED 20.3.2023 OF THE COURT OF THE ADDL. SESSIONS JUDGE-I, THIRUVANANTHAPURAM. ```