Athulraj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 11[TH] DAY OF JUNE 2024 / 21ST JYAISHTA, 1946** **BAIL APPL. NO. 2105 OF 2024** **CRIME NO.1114/2023 OF MANNANCHERRY POLICE STATION, Alappuzha PETITIONER/ACCSUED:** **ATHULRAJ, AGED 26 YEARS S/O. DEVARAJ,KUTHIRAKKATTUVELY, PONNAD P.O., MANNANCHERY,ALAPPUZHA, PIN - 688538** ## **BY ADV SHABU SREEDHARAN** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2105 OF 2024 2 ## **Dated this the 11[th] day of June, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the sole accused in Crime No.1114/2023 of the Mannancherry Police Station, Alappuzha, registered against him for allegedly committing the offences punishable under Sections 22 (a), 22(c) and 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 21.11.2023. 2. The crux of the prosecution case is that: on 21.11.2023, at around 16.55 hours, the Detecting Officer and party seized 50 grams of MDMA, 13.5 grams of Nitrozepam tablets and 160 grams of ganja from the accused. Thus, the accused has committed the above offences. 3. Heard; Sri.Shabu Sreedharan, the learned BAIL APPL. NO. 2105 OF 2024 3 counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no material to substantiate that the contraband was seized from the possession of the petitioner. The petitioner has been in judicial custody for the last 200 days, the investigation in the case is complete and recovery has been effected. Moreover, the petitioner does not have criminal antecedents. Therefore, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating officer has filed a bail objection report, inter alia, contending that the contraband involved in the case of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. There are incriminating materials to substantiate the petitioner's BAIL APPL. NO. 2105 OF 2024 4 involvement in the crime and that the contraband was seized from the possession of the petitioner. If the petitioner is released on bail, there is every likelihood of him tampering with evidence and interfering with the investigation. Hence, the bail application may be dismissed. 6. The prosecution allegation against the petitioner is that, the Detecting Officer and party seized 50 grams of MDMA, 13.5 grams of Nitrozepam tablets and 160 grams of ganja from the shoulder bag of the petitioner. Indisputably, 50 grams of MDMA falls within the specification of the 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) BAIL APPL. NO. 2105 OF 2024 5 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 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 BAIL APPL. NO. 2105 OF 2024 6 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: “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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. BAIL APPL. NO. 2105 OF 2024 7 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;(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”. BAIL APPL. NO. 2105 OF 2024 8 13. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, the materials 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 involved in the case and the prima facie materials that shows the involvement of the petitioner in the crime, I am not satisfied that there are reasonable ground to hold 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 valid grounds 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** rmm/11/6/2024