Arun Sabu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` BAIL APPL.NO.3345 OF 2024 ``` ``` CRIME NO.28/2023 OF Kalikavu Excise Range Office, Malappuram ``` ``` -------------- ``` ## **`PETITIONER/2ND ACCUSED :-`** ``` ARUN SABU, AGED 26 YEARS S/O.SABU MATHEW, MANNARATH HOUSE, MATHAIPPARA P O, UPPUTHARA, IDUKKI DISTRICT., PIN - 685 505 ``` ``` BY ADVS. P.SAMSUDIN LIRA A.B. NASRIN WAHAB DEVIKA E.D. ``` ## **`RESPONDENT/STATE :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 4 th day of June, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.28/2023 of the Kalikavu Excise Range Office, Malappuram, which is registered against the accused (2 in number), for allegedly committing the offences punishable under Section 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 05.03.2024. 2. The essence of the prosecution case is that; on 27.09.2023, at around 22.30 hrs., the 1st accused was found in possession of 13.775 gms of Methamphetamine. He was arrested on the spot with the contraband article. During his interrogation, he stated that he had also stored contraband article in his residence. Consequently, 48.853 gms of Methamphetamine was also recovered from his residence. During the course of the investigation, it was ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 3 :- ``` unveiled that the 2nd accused was supplied the contraband to the 1st accused. Thus, the accused have committed the above offences. 3. Heard; Sri.Samsudin Panolan, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the materials on record would substantiate that the contraband was allegedly seized from the 1st accused. It is solely on the basis of the confession made by the 1st accused that the petitioner has been implicated as an accused in the crime. Therefore, the entire prosecution as against the petitioner has to fail, in view of the decision of the Honourable Supreme Court in **Tofan Singh** v. **State of Tamil Nadu** [2020 (2) KLD 781]. The petitioner has been ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 4 :- ``` in judicial custody for the last three months, investigation in the case is practically complete and recover has been effected. Therefore, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, _inter alia_ , stating that there are incriminating materials to substantiate the petitioner's involvement in the case. In fact, it was the petitioner, who handed over the contraband to the 1st accused. The CC TV footage, monetary transactions and also the statements of the witnesses would clearly reveal the petitioner's involvement in the case. Since the contraband is of a commercial quantity, the rigour under Section 37 of the Act applies to the case. There are no reasonable grounds to release the petitioner on bail. Hence, the application may be dismissed. ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 5 :- ``` 6. The prosecution allegation against the accused is that; the 1st accused was found in conscious possession of 62.628 gms of Methamphetamine. During the course of investigation, it was found that, it was the petitioner who supplied the contraband to the 1st accused. Indisputably, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows :- “37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 6 :- ``` 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 8. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 9. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 7 :- ``` ## Supreme Court in **Union of India** v. **Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows :- 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 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. In **Union of India** v. **Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that :- “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. ## 11. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 8 :- ``` bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 12. In **Prasanta Kumar Sarkar** v. **Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows :- “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 13. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, the materials ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 9 :- ``` placed on record and on comprehending the seriousness, gravity, and nature of the offences alleged against petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband is involved in the case and the investigation in the case is only at a nascent stage, I hold that there are no reasonable grounds to find that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out any ground to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be rejected. Resultantly, the application is dismissed. **Sd/C.S. DIAS, JUDGE** Jvt/7.6.2024 ``` BAIL APPL.NO.3345 OF 2024 ``` ``` -: 10 :- ``` ## **`APPENDIX OF BAIL APPL. 3345/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure A1TRUE COPY OF THE ORDER DATED 26-03-2024 IN CRL MP 307/2024 OF THE SPECIAL COURT FOR TRIAL OF OFFENCES UNDER THE NDPS ACT CASES MANJERI Annexure A2TRUE COPY OF CERTIFICATE DATED 07-04-2024 ISSUED BY THE FR. JOSHY VANIYAPURAKKAL ```