Ashkar 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. 7505 OF 2022** **CRIME NO.654/2022 OF SREEKARYAM POLICE STATION, THIRUVANANTHAPURAM PETITIONER/ACCUSED NO.1:** **ASHKAR AGED 40 YEARS VILAKODANTAVIDA VEEDU, PANOOR VILLAGE, THALASSERY TALUK, KANOOR DISTRICT, PIN - 670692** **BY ADVS. Harikrishnan MS K.DHRUV KUMAR(K/211/2016) SHAKTHI PRAKASH(K/1170/2009)** **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **BY SMT.T.V.NEEMA, SRPUBLIC 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. 7505 OF 2022** **2** ## **ORDER** Dated this the 24[th] day of May, 2023 This is an application for regular bail filed by the petitioner, who is the first accused in crime No.654/2022 of Sreekaryam police station, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant documents form part of the case diary placed by the learned Public Prosecutor. 3. The prosecution case is that at about 11.45 hours on 31.07.2022, 74 gm of MDMA was seized from the possession of the first accused and further investigation revealed that accused Nos.2 to 4 also involved in this crime. Accordingly, all the accused were arrested on 31.07.2022. Thereafter, crime alleging commission of offence punishable under Section 20(C) of the Narcotic Drugs and Psychotropic **BAIL APPL. NO. 7505 OF 2022** **3** Substances Act, 1985 (hereinafter referred to as 'NDPS Act', for short) was registered. 4. The learned counsel for the petitioner pointed the fact that the petitioner has been in custody for the last about 10 months and therefore, the petitioner is liable to be released on bail since final report already filed. 5. Whereas it is submitted by the learned Public Prosecutor that 74 gm of MDMA was seized from the conscious possession of the first accused. It is also submitted by the learned Public Prosecutor that as per order dated 16.09.2022 in B.A.No.6878/2022, this Court dismissed the bail application of the third accused. According to the learned Public Prosecutor, this Court cannot grant regular bail to the petitioner without diluting the rider under Section 37 of the NDPS Act since commercial quantity of contraband is involved. 6. On perusal of the available materials, it is established, _prima facie,_ that 74 gm of MDMA was seized from **BAIL APPL. NO. 7505 OF 2022** **4** the possession of the first accused and he was nabbed along with the contraband. Therefore, since the contraband is commercial in nature, the rigour under Section 37 of the NDPS Act, has application in the case at hand. 7. In so far as grant of regular bail to the accused who was nabbed on the allegation of possession of commercial quantity of contraband, Section 37 of the NDPS Act would squarely 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_ **BAIL APPL. NO. 7505 OF 2022** **5** _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 ‘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 **BAIL APPL. NO. 7505 OF 2022** **6** 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 decisions reported in _**Superintendent, Narcotics Central Bureau v. R.Paulsamy**_ [2000 KHC 1549: AIR 2000 SC 3661: **BAIL APPL. NO. 7505 OF 2022** ## **7** (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]. The latest decision on this point is [2023 CriLJ 799], **Union of India v. Jitentra Giri.** **BAIL APPL. NO. 7505 OF 2022** **8** 12. 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 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 **BAIL APPL. NO. 7505 OF 2022** **9** on bail. Therefore application for regular bail at the instance of the petitioner must fail. Hence this petition stands dismissed. **Sd/-** # **A. BADHARUDEEN JUDGE** nkr