Arun V.P. vs State of Kerala and The Station House Officer, Vengara Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945** **BAIL APPL. NO. 382 OF 2023** CRIME NO.139/2022 OF VENGARA POLICE STATION, MALAPPURAM DISTRICT. ## **PETITIONER/ACCUSED NO.3:** ARUN V.P. AGED 22 YEARS S/O. BHASKARAN V.P., VATTAPARAMBIL HOUSE, PUTHENPEEDIKA P.O., VENGARA, MALAPPURAM DISTRICT, PIN - 676304 BY ADV K.RAKESH ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 THE STATION HOUSE OFFICER VENGARA POLICE STATION, MALAPPURAM DISTRICT, PIN - 676304 BY SR. PUBLIC PROSECUTOR SRI.P G MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 382 OF 2023 2** ## **ORDER** Dated this the 28[th] day of March, 2023 This is an application for regular bail filed by the 3[rd] accused in Crime No.139/2022 of Vengara Police Station, Malappuram District. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents. 4. The prosecution case is that, at about 9.55 p.m. on 27.4.2022, accused Nos.1 and 2 were found transporting 781 gm of MDMA in a car, bearing Registration No.KL-65-R4680. Subsequently, during detailed investigation, it was revealed that the MDMA, which was recovered from accused Nos.1 and 2, was purchased by the 3[rd] accused and for which, all of them have stayed at Olive Residency, Bangalore, for which, witness No.15, the owner of the lodge, given statement. Further investigation also revealed the involvement of the 3[rd] accused in this crime. Accordingly, he ## **BAIL APPL. NO. 382 OF 2023 3** also was arrested on 18.6.2022. In this matter, prosecution alleges commission of offences 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 highlighted innocence of the accused and it is submitted that, merely based on the confession statement of the other accused, the petitioner got arrayed as accused. Therefore, his complicity is much less and he may be released on bail, taking note of his custody from 18.6.2022. 6. Whereas, the learned Public Prosecutor pointed out the involvement of the petitioner also in this crime, pointing out that the joint stay of accused Nos.1 to 4 in Room No.201 of Olive Residency and testing of the MDMA to ensure its quality, by the 3[rd] accused etc., to show the involvement of the 3[rd] accused in this crime. According to him, since commercial quantity of contraband is involved in this crime, this Court must satisfy the twin conditions under Section 37 of the NDPS Act, while granting regular bail to the petitioner. **BAIL APPL. NO. 382 OF 2023 4** 7. On perusal of the available records, initially, the petitioner filed bail application before this Court, but the same was withdrawn with liberty to move before the Special Court. Accordingly, B.A.No.6424/2022 was dismissed. Thereafter, the petitioner herein filed Crl.M.P.No.1875/2022 before the Special Court, Manjeri and pressed for regular bail. CCTV visuals to point out the arrest of the accused at 5.00 p.m. on 27.4.2022, was given emphasis before the Special Court. But, the Special Court dismissed the bail application, holding that, the contention raised by the by the accused could not be found prima facie. 8. In this matter, the specific allegation against the petitioner is that, he along with accused Nos.1,2 and 4 reached Bangalore to purchase MDMA and they stayed at Room No.201 in Olive Residency, Bangalore and the owner of the lodge given statement in this regard, supporting the prosecution case. On further investigation, it was revealed that, it was the 3[rd] accused, who tested the quality of the contraband and ensured the same as MDMA. Further, he had helped in transporting the MDMA by accused Nos.1 and 2. ## **BAIL APPL. NO. 382 OF 2023 5** Thus, the involvement of the petitioner in this crime is established, prima facie. In such a case, this Court cannot grant bail to the petitioner, without satisfying the twin conditions provided under Section 37 of the NDPS Act. 9. 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 subsection (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. 382 OF 2023 6** 10. 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. 11. 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. 12. It was further held that the Court while considering the application for bail with reference to S.37 of ## **BAIL APPL. NO. 382 OF 2023 7** 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 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. 13. 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 ## **BAIL APPL. NO. 382 OF 2023 8** 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 reported in [2023 Crl.L.J.799], **Union of India v. Jitendra Giri** . 14. 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 ## **BAIL APPL. NO. 382 OF 2023 9** under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 15. 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. 16. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- **A. BADHARUDEEN** ## **JUDGE** Bb