Arun S. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945** **BAIL APPL. NO. 3423 OF 2023** **CRIME NO.1035/2022 OF VIZHINJAM POLICE STATION, THIRUVANANTHAPURAM AGAINST THE ORDER/JUDGMENT IN BAIL APPL. 1240/2023 OF HIGH COURT OF** ## **KERALA** ## **PETITIONER/ACCUSED NO.2:** **ARUN.S AGED 22 YEARS S/O SNEHAJAN, VELLARADA, KIZHAKKUMKARA PUTHEN VEEDU, ANAVOOR, MANALI, KUNNATHUKAL, THIRUVANANTHAPURAM DISTRICT, PIN - 695504 BY ADVS. VIDYA G NAIR ARUN R.** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SMT T V NEEMA, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 3423 OF 2023** **2** ## **ORDER** Dated this the 24[th] day of May, 2023 This is the second application for regular bail filed under Section 439 of the Code of Criminal Procedure by the second accused in crime No.1035/2022 of Vizhinjam police station, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary as such along with the report of the Investigating Officer placed by the learned Public Prosecutor. 3. The prosecution case to be read out from the case diary placed by the learned Public prosecutor is that in between 1.30 hours and 1.35 hours on 15.01.2022, on search conducted by the Vizhinjam Police, 9.30 gram and 6.45 gram of MDMA were seized from the possession of accused Nos. 1 and 2 while they were travelling on a bike bearing Reg.No.KL 69A 7753. Accordingly, they were arrested and contraband has been taken into custody. On this premise, the prosecution alleges **BAIL APPL. NO. 3423 OF 2023** **3** commission of offences punishable under Section 22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act' for short hereinafter). 4. The learned counsel for the petitioner would submit that the petitioner has no connection with this crime and he is absolutely innocent. It is submitted further that the petitioner has no criminal antecedents and, therefore, the petitioner, who has been in custody from 15.10.2022 onwards, is liable to be released on bail. 5. The learned Public Prosecutor zealously opposed grant of bail as pressed for by the learned counsel for the petitioner on the submission that, in this case, commercial quantity of contraband was seized from joint possession of accused Nos.1 and 2 and therefore, the rigour under Section 37 of the NDPS Act would apply and therefore, this Court cannot grant bail without satisfying the conditions dealt in Section 37 of the NDPS Act. 6. The learned counsel for the petitioner highlighted **BAIL APPL. NO. 3423 OF 2023** **4** that 6.45 grams alone was seized from the custody of the petitioner and the said quantity is an intermediate quantity and, therefore, the petitioner is liable to be released on bail diluting the rigour under Section 37 of the NDPS Act. It is also submitted that the earlier bail application of the petitioner was dismissed holding that the rider under Section 37 of the NDPS Act could not be diluted. 7. On perusal of the case diary, it appears that the contraband was seized while accused Nos.1 and 2 were carrying the same on a motor bike jointly and accordingly, the offence under Section 29 of the NDPS Act also was incorporated. In such a case, there is no reason to consider the contraband in isolation and to see the same as `intermediate quantity'. In fact, the rigour under Section 37 of the NDPS Act, has application in the case at hand. In fact, considering all these aspects in detail, the earlier bail application (BA.No.1240/2023) was dismissed on 06.03.2023. No change in circumstances pointed out to take a different view. **BAIL APPL. NO. 3423 OF 2023** **5** 8. In fact, in this matter, Section 37 of the NDPS Act interdicts grant of bail to the accused in a crime involving commercial quantity of contraband. 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._ 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 **BAIL APPL. NO. 3423 OF 2023** **6** 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 **BAIL APPL. NO. 3423 OF 2023** **7** 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. 12. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in S _**uperintendent, 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**_ **BAIL APPL. NO. 3423 OF 2023** **8** _**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 [2023 CriLJ 799], _**Union of India v. Jitentra 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 **BAIL APPL. NO. 3423 OF 2023** **9** NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 14. 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, application for regular bail at the instance of the petitioner must fail. As per order dated 06.03.2023 in B.A.No.1240/2023, this Court dismissed the regular bail plea at the instance of the petitioner herein. In fact, there is nothing substantiated to reconsider the regular bail plea at the instance of the petitioner. Therefore, for the same reasons, this bail application is also dismissed. ## **Sd/-** ## **A. BADHARUDEEN** ## **JUDGE** nkr