Askar Ali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 BAIL APPL. NO. 9803 OF 2023** **CRIME NO.455/2023 OF Shornur Police Station, Palakkad** ## **PETITIONER/S:** ASKAR ALI AGED 47 YEARS S/O. MUHAMMAD, VELLIYATTIL HOUSE, NADUTHARA POST, WADAKKANCHERRY, THRISSUR DISTRICT, PIN - 680582 BY ADVS. NIKITA J. MENDEZ P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL SRUTHY K.K ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 9803 OF 2023 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 2[nd] accused in Crime No.455/2023 registered by Shornur Police Station, Palakkad alleging the accused to have committed the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner's arrest was recorded on 10.08.2023. 2. The prosecution case, in brief, is that: on 14.07.2023 the 1[st] accused was found in possession of 98.87 grams of MDMA and was arrested. After his arrest, he confessed that the contraband article has brought for the purpose of being supplied to the 2[nd] accused. Thus, the accused have committed the above offences. 3. Heard; Sri.P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondent. BAIL APPL. NO. 9803 OF 2023 3 4. The learned Senior Counsel for the petitioner strenuously argued that the petitioner has been falsely implicated in the crime. The present crime is an aftermath of the compliant that the petitioner had filed against the Investigating Officer for the harassment that was meted out on him while he was arrested in Crime No.435/2023. It was submitted that the petitioner was initially arrested on 08.07.2023 in Crime No.435/2023. When he was produced before the jurisdictional Magistrate, he had given a written complaint regarding the harassment. Immediately, the petitioner was again arrested in Crime No.418/2023 by the Pattambi Police, alleging that certain contraband articles were seized from the petitioner. It is thereafter that the present crime was registered, on the alleged confession made by the 1[st] accused in the present crime. Since, the petitioner was in judicial custody, by no stretch of imagination can it be alleged that the contraband article was brought for the petitioner. Hence, the application may be allowed. ## 5. The learned Public Prosecutor vehemently opposed BAIL APPL. NO. 9803 OF 2023 4 the application. She contended that, in the investigation, it has been unraveled that there have been bank transactions between the petitioner and the 1[st] accused to the tune of Rs.40,000/- (Rupees Forty thousand only), which was transferred from the bank account of the petitioner to the 1[st] accused. There are also several whatsapp communications between the petitioner and the 1[st] accused. Infact, the 1[st] accused had purchased the article from a Nigerien lady from Bangalore as instructed by the petitioner. Moreover, the petitioner has criminal antecedents. There is every likelihood of the petitioner committing a similar offence, if he is let off on bail. The rigour under Section 37 of the Act may not be diluted. Hence, the application may be dismissed. 6. The prosecution case is that the 1[st] accused had confessed that he had brought 98.87 grams of MDMA for the purpose of being supplied to the petitioner. At that time, the petitioner was already in judicial custody in connection with Crime Nos.435/2023 and 418/2023. The petitioner's arrest was recorded in the present case on the BAIL APPL. NO. 9803 OF 2023 5 basis of the confession made by the 1[st] accused on 10.08.2023. The investigation, prima facie, reveals that the petitioner had transaction with the 1[st] accused. 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 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 BAIL APPL. NO. 9803 OF 2023 6 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 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: BAIL APPL. NO. 9803 OF 2023 7 “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 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; BAIL APPL. NO. 9803 OF 2023 8 (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. Similarly, in **Kalyan Chandra Sarkar v. Rajesh** ## **Ranjan,** [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338)”. On a meticulous scrutiny of the factual matrix for the purpose of bail and the law referred to above, and taking into account the gravity of accusations leveled against the BAIL APPL. NO. 9803 OF 2023 9 petitioner, the severity of the punishment that can be imposed on the petitioner in the event of him being found guilty, the petitioner being a history sheeter being involved in two other crimes, and further the commercial quantity of the contraband article allegedly brought for the purpose of use for the petitioner, I am not at this stage satisfied that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if enlarged on bail, so as to dilute the rigour under Sec.37 of the Act. The application is meritless and is only liable to be dismissed. ## Resultantly, the application is dismissed. Sd/- **C.S.DIAS JUDGE** rkc/08.01.24 BAIL APPL. NO. 9803 OF 2023 10 ## **APPENDIX OF BAIL APPL. 9803/2023** PETITIONER ANNEXURES - Annexure-1 TRUE COPY OF THE REMAND REPORT IN CRIME NO. 435/2023 OF SHORNUR POLICE STATION, PALAKKAD DISTRICT - Annexure-2 TRUE COPY OF THE ORDER DATED 13-09-2023 OF THE COURT OF SESSIONS, PALAKKAD DIVISION, IN CRL. M.C. NO. 4084/2023 - Annexure-3 TRUE COPY OF THE REPORT DATED 10-07-2023 IMPLICATING HIM AS THE 2ND ACCUSED IN THE CASE - Annexure-4 TRUE COPY OF THE ORDER DATED 06-10-2023 OF THE COURT OF SESSIONS, PALAKKAD DIVISION IN CRL. M.C. NO. 4556/2023 - Annexure-5 TRUE COPY OF THE REPORT DATED 10-08-2023, ADDING THE APPLICANT AS THE 2ND ACCUSED IN CRIME NO.455/2023 OF SHORNUR POLICE STATION Annexure-6 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO. 455/2023 OF SHORNUR POLICE STATION Annexure-7 TRUE COPY OF THE ORDER DATED 27-09-2023 OF THE COURT OF THE SESSIONS JUDGE, PALAKKAD DIVISION, IN CRL. M.C. NO. 4199/2023