Arun Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 21[ST] DAY OF MAY 2021 / 31ST VAISAKHA, 1943** ## **BAIL APPL. NO. 3554 OF 2021** ## **CRIME NO.364 OF 2021 OF FORT POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **1 ARUN RAJ, AGED 24 YEARS, S/O RAJENDRAN, RESIDING AT T.C 36/643, MOOKAMBIKA LANE, EANCHAKKAL, PERUTHANNI WARD, PETTAH VILLAGE THIRUVANANTHAPURAM, PIN - 695024** **BY ADV SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENT:** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA ERNAKULAM, PIN – 682031** **BY ADV AJITH MURALI PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.3554 OF 2021 2 ## **Bail Application No.3554 of 2021 -----------------------------------------------** ## **O R D E R** This is an application for regular bail under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the second accused in Crime No.364 of 2021 of Fort Police Station, Thiruvananthapuram registered for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). The accusation in the case is that on 08.03.2021, at about 13.30 hours, the petitioner and others were found in possession for sale 39 gms of Methylene Dioxy Methamphetamine (MDMA), a psychotropic substance, in an apartment. The petitioner was arrested on the same day viz, on 08.03.2021 and he is in custody since then. 3. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. 4. The learned Public Prosecutor opposed the B.A.No.3554 OF 2021 3 application pointing out that the allegations levelled against the petitioner are grave, the investigation in the case is yet to be completed and that the petitioner is not co-operating with the investigation. According to the learned Public Prosecutor, if the petitioner is granted bail at this stage, the same will affect the investigation in the case adversely. It was also pointed out by the learned Public Prosecutor that the quantity of the contraband allegedly seized from the possession of the petitioner and others being a commercial quantity in terms of the provisions of the Act, the petitioner is not entitled to bail in the light of the provisions contained in Section 37 of the Act also. However, on a query from the court, the learned Public Prosecutor conceded that the petitioner has no criminal antecedents. 5. The learned counsel for the petitioner submitted that the investigating agency could not collect any material to connect the petitioner with the contraband during the last almost 75 days and as such, there is absolutely no justification to deny bail to the petitioner. The learned counsel B.A.No.3554 OF 2021 4 for the petitioner however conceded that the quantity of the contraband allegedly seized from the petitioner and others is a commercial quantity. But, the learned counsel pointed out that there are reasonable grounds in this case for believing that the petitioner is not guilty of the offence alleged and that he is not likely to commit any offence while on bail, and therefore the provisions contained in Section 37 of the Act do not stand in the way of this court granting bail to the petitioner. The learned counsel has made elaborate the submissions to bring home the said point. It is unnecessary to refer to the submissions made by the learned counsel for the petitioner in this regard, for I propose to deal with the same in more detail. 6. It is seen that the petitioner is a person aged 24 years. As noted, the petitioner has no criminal antecedents and he is in custody since 08.03.2021. The report filed by the investigating officer in this case indicates that the investigating agency could not collect any material to connect the petitioner with the contraband for the last almost 75 days, except the fact that he was found to be in the company of the first accused B.A.No.3554 OF 2021 5 who is residing in the apartment from where the contraband has been allegedly seized. Be that as it may, even if this court finds that the aforesaid are grounds on which the petitioner could be enlarged on bail, in the light of the provisions contained in Section 37 of the Act, this court is empowered to do so only if there are reasonable grounds in this case for believing that the petitioner is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. That takes me to the question as to whether there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. 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 alleged 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 B.A.No.3554 OF 2021 6 the accused is not guilty of the offence alleged [See **Union of India v. Shiv Sankar kesari,** (2007) 7 SCC 798]. 8. Annexure 2 in the bail application is the search list/seizure mahazar of the contraband. Annexure 2 reveals that on receiving information that the contraband is kept for sale in the apartment, police party went to the apartment and found the petitioner and another along with the first accused who is residing in the apartment and though the police party searched the body of the petitioner and others who were found in the apartment at the relevant time, nothing could be found, except their mobile phones. It is also seen that later, the police party conducted a search in the apartment where the first accused was residing and in the said search, they seized the contraband from the almirah kept in the bedroom of the first accused. The report filed by the investigating officer in this matter indicates that the investigating agency could not collect any material as to the source of the contraband, the connection, if any, of the remaining accused with the contraband etc. Instead, what is stated in the report is that no further material could be B.A.No.3554 OF 2021 7 collected on account of the non co-operation of the accused. 9. It is trite that in order to make possession of a contraband illicit, there must me conscious possession. In other words, unless possession was coupled with requisite mental element, and not merely custody without awareness and nature of such possession, possession cannot be said to be illicit [See **Ruban Joseph v. State of Kerala** , 1993 KHC 294 and **Madan Lal and another v. State of H.P.** , (2003) 7 SCC 465]. 10. As noted, the petitioner is not the owner or lessee of the apartment from where the contraband was allegedly seized. He was not otherwise in possession of the apartment also. The seizure of the contraband from the almirah was not pursuant to any information provided by the petitioner. There is no allegation that the almirah from where the contraband was allegedly seized was pointed out by the petitioner or that the petitioner was holding the key of the almirah or any of his belongings were found in the almirah. No money was also seized from the body of the petitioner. In other words, the petitioner has been arrayed as an accused merely B.A.No.3554 OF 2021 8 on account of his presence in the apartment at the time of the alleged search and seizure of the contraband. As noted, despite lapse of 75 days, the investigating agency could not collect any material to connect the petitioner with the contraband. In the absence of any evidence or circumstances indicative of the animus to possess, one cannot infer joint possession or even constructive possession of a contraband, for in a case of this nature, the possibility of innocent possession cannot be ruled out. In the aforesaid circumstances, according to me, the materials on record disclose reasonable grounds for believing that the petitioner is not guilty of the offence alleged. As regards the second limb of Section 37(1)(b)(ii) of the Act, as noted, there are no criminal antecedents for the petitioner and no circumstance was brought to the notice of this court to indicate that the petitioner is likely to commit any offence while on bail. In other words, according to me, the provisions contained in Section 37 of the Act do not stand in the way of this court enlarging the petitioner on bail. In the circumstances, I am inclined to enlarge the B.A.No.3554 OF 2021 9 petitioner on bail on the following terms: (i) The petitioner shall execute a bond for a sum of ₹50,000/- with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. (ii) The petitioner shall appear before the Investigating Officer after the lock down on all Saturdays between 9.00 a.m. and 10.00 a.m. for a period of two months or till final report is filed, whichever is earlier. (iii) The petitioner shall not intimidate or attempt to influence the witnesses nor shall he tamper with the evidence. (iv)The petitioner shall not commit any offence while on bail. (v) The petitioner shall not leave the country without the permission of the jurisdictional court. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** YKB