Ashik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 BAIL APPL. NO. 117 OF 2023** CRIME NO.825/2022 OF ALAPPUZHA SOUTH POLICE STATION, ALAPPUZHA ## **PETITIONER/ACCUSED:** ASHIK, AGED 28 YEARS S/O SURESH PUTHANCHIRA HOUSE, WARD NO:11, KANJIKUZHY PANCHAYATH, ALAPPUZHA – 688525. BY ADVS. R.UMASANKAR S.GULZAR ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN – 682031. BY ADVS. SENIOR PUBLIC PROSECUTOR SMT.T.V.NEEMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10.02.2023, THE COURT ON 17.02.2023 DELIVERED THE FOLLOWING: B.A.No.117/2023 2 ## _**A. BADHARUDEEN, J.**_ ================================ _B.A.No.117 of 2023_ _================================ Dated this the 17th day of February, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the 2nd accused in Crime No.825 of 2022 of Alappuzha South Police Station, Alappuzha, under Section 439 of the Code of Criminal Procedure (`Cr.P.C' for short), where he alleged to have committed offences punishable under Sections 22(c) r/w Section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS' for short). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. The prosecution case is that at about 14.50 hours on 24.09.2022 accused 1 and 2 in this case were found carrying MDMA in a black trolley bag and they were intercepted. Finally 137.69 grams of MDMA was recovered from their possession B.A.No.117/2023 3 along with 10 ATM cards and currency notes to the tune of Rs.580/- from the body of Athuldev and one mobile phone, two ATM cards and currency notes to the tune of Rs.4.070/- from the body of Ashik. Accordingly, they were arrested and contraband was taken into custody. Thereafter crime was registered alleging commission of offences punishable under Section 22(c) r/w 29 of the NDPS Act. 4. The learned counsel for the petitioner highlighted improbability in the prosecution allegation mainly relying on Annexures-IV and Annexure-V documents. It is argued that the tracking number of the article alleged to be recovered under the head “electric items B14114009' as per Annexure-V was delivered at 3.49 p.m on 24.09.2022. But the police would say that the accused was arrested at 14.50 hours and, therefore, the time of occurrence stated by the prosecution is an improbability, when considering the time shown in Annexure-V. According to the learned counsel for the petitioner, the petitioner is innocent and the entire allegations are false. Hence, rider under Section 37 B.A.No.117/2023 4 of the NDPS Act would not attract and therefore, the petitioner is liable to be released on bail, taking note of his custody from 25.09.2022 onwards. 5. Whereas the learned Public Prosecutor opposed the bail plea at the instance of the petitioner and submitted that Annexure-IV and Annexure-V cannot be given emphasis to appreciate the contentions raised by the petitioner at this stage and authenticity of Annexure-IV and Annexure-V is a matter of evidence. Accordingly the learned Public Prosecutor strongly opposed the bail plea highlighting the rider under Section 37 of the NDPS Act. 6. I have gone through Annexure-V showing the alleged delivery of electric items with tracking number B14114009 stated in Annexure-V) as 3.49 p.m. The prosecution allegation herein is that the S.I of Police, Alappuzha South Police Station found the accused at 14.50 hours and recovery effected at 15.50 hours. It is pertinent to note that in Annexure-V, the time of delivery is shown as 3.49 p.m. But the authenticity of Annexure-V, a photocopy of B.A.No.117/2023 5 a Whatsapp message, cannot be the sole basis to disbelieve the recovery, in a case where petitioners were arrested red handedly. That apart, the time of delivery shown in Annexure-V is accurate or the same is pertaining to the contraband, are matte **rs** of evidence. It may happen due to the incorrect time at the mobile phone, where from the message was sent. Even relying on Annexure-IV and Annexure-V, the photostat copies of the above documents, its authenticity is yet to be established, the time of recovery was at 15.50 hours, ie. after one minute from the time of delivery. Therefore, the anomaly pointed out by the petitioner is of no help to the petitioner to establish the improbability in the prosecution allegation. 7. Here admittedly commercial quantity of contraband is seized and therefore, rider under Section 37 would apply in this case. 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_ B.A.No.117/2023 6 _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._ 8. 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. 9. 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 B.A.No.117/2023 7 ‘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. 10. 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 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. 11. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the B.A.No.117/2023 8 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] 12. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) B.A.No.117/2023 9 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. 13. 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 this application for regular bail at the instance of the petitioner must fail. B.A.No.117/2023 10 Hence this petition stands dismissed. _Sd/-_ ( _**A.BADHARUDEEN, JUDGE**_ ) rtr/ B.A.No.117/2023 11 ## **APPENDIX OF BAIL APPL. 117/2023** PETITIONER'S ANNEXURES Annexure I THE TRUE COPY OF THE F.I.R IN CRIME NO. 825/2022 DATED 25.09.2022. Annexure II THE TRUE COPY OF THE MAHAZAR DATED 24.09.2022 OF ALAPPUZHA SOUTH POLICE STATION. Annexure III TRUE COPY OF THE WOUND CERTIFICATE DATED 25.09.2022 ISSUED FROM THE GENERAL HOSPITAL, ALAPPUZHA. Annexure IV TRUE COPY OF THE COMPLAINT DATED 16.03.2022 FILED BY THE PETITIONER. Annexure V TRUE COPY OF THE BARCODE. Annexure V (a) TRUE COPY OF THE TRACKING ID. Annexure VI TRUE COPY OF THE ORDER IN CRL.M.P NO:4905/2022 DATED 15.12.2022 BEFORE THE HON'BLE SESSIONS COURT, ALAPPUZHA