Arun Gopal M.S v. State of Kerala and Circle Inspector of Excise

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 BAIL APPL. NO. 646 OF 2023 ``` ``` CRIME NO.55/2022 OF THE EXCISE RANGE, THIRUVANANTHAPURAM ``` ## **`PETITIONER/PETITIONER/ACCUSED NO.2:`** ``` ARUN GOPAL M.S AGED 31 YEARS S/O MANOHARAN, C.P.J SADANAM, PERUKAVU (PO), MANGATTUKADAVU, VILAVOORKAL VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695573 BY ADV C.K.MOHANAN ``` ## **`RESPONDENTS/STATE/COUNTER PETITIONER:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN - 682031 2THE CIRCLE INSPECTOR OF EXCISE, THE EXCISE RANGE THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, PIN – 695004 ``` ``` BY SR.PUBLIC PROSECUTOR SRI.P G MANU ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 646 OF 2023 2 ``` ## ORDER Dated this the 1[st] day of March, 2023 This is an application for regular bail, filed by the 2[nd] accused in Crime No.55/2022 of Thiruvananthapuram Excise Range. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant records including the chemical analysis report, showing the contraband as MDMA, placed by the learned Public Prosecutor. 4. The prosecution case is that, at about 7.45 p.m. on 29.11.2022, on the basis of a secret information that accused Nos.1 to 3 were possessing contraband, search was conducted and it was found that, accused Nos.1 to 3 jointly collected MDMA to the tune of 22.085 from the courier service and, at this juncture, the same was seized and crime was registered, alleging commission of offence punishable under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter). 5. The learned counsel for the petitioner, who vehemently ## **`BAIL APPL. NO. 646 OF 2023 3`** canvassed regular bail to the petitioner, submitted that, nothing recovered from the conscious possession of the petitioner. He read out the relevant portions of the mahazar, whereby, it has been narrated that, on receipt of the courier article, containing contraband, the 1[st] accused handed over the same to 2[nd] accused, then, 2[nd] accused handed over the same to the 3[rd] accused, and in turn, the 3[rd] accused handed over the same to the 1[st] accused and the contraband was recovered from the 1[st] accused, to point out that the said narration is an improbability. He also would point out that the petitioner is a person hailing from poor family and his custody further would adversely affect the family, as a whole and therefore, he is liable to be released on bail in consideration of his custody with effect from 29.11.2022. 6. The learned Public Prosecutor strongly opposed bail on the submission that, even as per the chemical analysis report, it was found that the contraband is MDMA and therefore, the quantity is commercial quantity, where this Court is bound to consider the rigor under Section 37 of the NDPS Act. Apart from that, the learned Public Prosecutor submitted that, in fact, accused Nos.1 to 3 jointly went to Bangalore and forwarded the contraband to courier service and they jointly collected the ## **`BAIL APPL. NO. 646 OF 2023 4`** contraband and these aspects were noted by the police officers in mufti and on getting secret information, and subsequently thereafter, the contraband was seized, while the accused were possessing the same jointly. That apart, it is submitted that the petitioner is a habitual offender, having involvement in multiple crimes. The following are the crimes, reported insofar as the petitioner is concerned: 1. Poojappura Police Station Crime No. 555/2010 (U/s.143, 147, 323, 427, 149 IPC), Crime No. 738/2010 (U/s. 107 CRPC), Crime No. 556/2010 (U/s. 452, 427, 34 IPC) 2. Museum Police Station Crime No. 414 (U/s 143,147,149,283 IPC), Crime No. 296/2022 (U/s, 294(b), 341, 324, 506, 34 IPC . 3. Fort Police Station Crime No. 32/2010 (U/s.279, 185 MV Act) , 4. Karamana Police Station Crime No.754/2010 (U/s. 323, 324, 34 IPC), Crime No.1177/2019 (U/s. 279,185 MV Act) 5. Petta Police Station Crime No.1490/2020 ( U/s. 188, 269 IPC, 4(2)(d)(5) ked) 6. Medical College Police Station Crime No.277/2013 ( U/s 380, 34 (PC) 7. Thambanoor Police Station Crime No.1469/2011 (U/s,324,323, 34 IPC) 7. In this matter, going by the narration in the scene mahazar, read out by the learned counsel for the petitioner to prove the innocence of the petitioner and to substantiate that he did not consciously possess the same, the narration in the mahazar, based on secret information is to the effect that, all the accused jointly possessed contraband and the same ## **`BAIL APPL. NO. 646 OF 2023 5`** was seized at this juncture. In fact, these aspects would substantiate the prosecution allegation and therefore, the arguments, at the instance of the petitioner, cannot be appreciated and the available materials would go to show that all the accused jointly involved in possession of the same, prima facie the offences are well made out. 8. No doubt, 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. ## **`BAIL APPL. NO. 646 OF 2023 6`** 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 of the offence charged. 11. 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 ## **`BAIL APPL. NO. 646 OF 2023 7`** 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. 12. 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: 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 one ## **`BAIL APPL. NO. 646 OF 2023 8`** reported in [2023 Crl.L.J.799], Union of India v. Jitendra Giri . 13. 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 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. 14. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 15. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to ``` BAIL APPL. NO. 646 OF 2023 9 ``` be released on bail. Accordingly, this bail application stands dismissed. Bb Sd/A. BADHARUDEEN JUDGE //TRUE COPY// PA TO JUDGE