BA No. 1910 of 2023 (Eze Chinedu Remijus @ Mike v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 BAIL APPL. NO. 1910 OF 2023** **IN CRIME NO.963 OF 2021 OF NEDUMBASSERY POLICE STATION** **PETITIONER/ACCUSED NO.6:** **EZE CHINEDU REMIJUS @ MIKE AGED 36 YEARS SON OF REMOND, IHEMBOSI, ONISHA CITY, ANAMBRA STATE, NIGERIA, R.P.NO. 151/22, CENTRAL PRISON, VIYUR, THRISSUR DISTRICT, PIN - 680010** **BY ADVS. MANJU ANTONEY R.ANAS MUHAMMED SHAMNAD** ## **RESPONDENT/PROSECUTION:** **STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, NEDUMBASSERY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** ## **OTHER PRESENT:** **P G MANU SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.1910 of 2023 ..2.. ## **A.BADHARUDEEN, J.** **- - - - - - - - - - - - - - - - - - -** B.A.No.1910 of 2023 **- - - - - - - - - - - - - - - - - - -** Dated this the 16[th] day of March, 2023 ## **O R D E R** This is an application for regular bail filed, under Section 439 of the Criminal Procedure Code, by the petitioner, who is the sixth accused in Crime No.963 of 2021 of Nedumbassery Police Station, Ernakulam. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary placed by the learned Public Prosecutor. 3. The prosecution case is that at about 15.30 hours on 21.11.2021, accused Nos. 1 to 4 were found in possession of 158 grams of MDMA and 4.6 grams of MDMA pills while arrying the same in a polythene kit in a Swift car bearing registration No.KL-47-F-4675. Accordingly, they were redhandedly arrested and the crime alleging commission of offences punishable under Sections 28(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act was B.A.No.1910 of 2023 ..3.. registered and the same is on investigation. On further investigation, it has been revealed that the contraband was supplied by the sixth accused/petitioner herein, a citizen on Nigeria and he contacted accused Nos. 5 and 6 through his number +2348060768750. The number of the fifth accused is shown as 9380611809. Their communication was through WhatsApp. The further allegation of the prosecution is that the sixth accused was the person who handed over the contraband to the first accused at Kammanahalli, Bangalore City, Karnataka on 19.11.2021. The further allegation is that at the time of handing over of the contraband, the first accused had directly given Rs.1,20,000/- to the sixth accused and Rs.20,000/- was handed over to the fifth accused through his account linked with mobile number 9380611809. On this premise, accused Nos. 5 and 6 got arrayed as the accused. 4. The learned counsel for the petitioner would submit that the prosecution implicated the petitioner as the sixth accused in this crime without support of any material and the one and only piece of evidence is the confession statement given by the other accused, which is admittedly inadmissible in evidence. Apart from the confession statement, there is B.A.No.1910 of 2023 ..4.. nothing on record to establish the guilt of the accused and therefore, he deserves bail, is the submission of the learned counsel for the petitioner. It is submitted further that Article 21 of the Constitution of India applies to a foreign citizen, also unless and until a person is found not guilty during trial, he is presumed to be innocent. Therefore, the petitioner deserves leniency and he is liable to be released on bail. But, nothing has been argued by the learned counsel for the petitioner to satisfy the twin conditions provided under Section 37 of the NDPS Act, a special provision in a special statute, though the same would govern grant of bail in this case involving commercial quantity of narcotic drugs. 5. Whereas, it is submitted by the learned Public Prosecutor that the name of the sixth accused as disclosed by the other accused is 'Mike' and later, identified as Eze Chinedu Remijus. Further, it is submitted that the sixth accused is the person who supplied contraband to the first accused and accused Nos. 1 to 4 were nabbed by the Police while transporting the said contraband. It is submitted further that the document showing the transaction of money between accused Nos. 5 and 6 was also collected by the prosecution B.A.No.1910 of 2023 ..5.. and therefore, the absolute innocence as canvassed by the learned counsel for the petitioner cannot be addressed by this Court at this stage, in a case involving commercial quantity of contraband where rigour under Section 37 would squarely apply. 6. On perusal of the case records, it is discernible that the first accused mentioned the name of the petitioner, who is a Nigerian citizen, as “Mike”. Thereafter, on further investigation, it has been revealed that “Mike” referred by the first accused is none other than 'Eze Chinedu Remijus' and accordingly, he was also incorporated as accused and his arrest was recorded. The 'WhatsApp' messages in between the first accused and the sixth accused as well as the sixth accused and the fifth accused through their respective mobile numbers were also collected in addition to the confession statement as incriminating circumstances against the petitioner. Even though the learned counsel for the petitioner submitted that the petitioner is absolutely innocent, the 'WhatsApp' messages in between the first accused and the sixth accused as well as the fifth accused and sixth accused show the connection with the other accused. It is pertinent to B.A.No.1910 of 2023 ..6.. note that on 20.11.2021, Rs.20,000/- was withdrawn by the fifth accused and entrusted the same to the sixth accused is the allegation of the prosecution, apart from effecting payment to the tune of Rs.1,20,000/- directly by the first accused to the sixth accused and in addition to the confession statement. Prima facie, there is no reason for the first accused to name the petitioner, a native of Nigeria, with certainty along with his mobile number, if he has no involvement in this crime. Therefore, the complicity of the petitioner cannot be read in isolation to hold that he is absolutely innocent and the allegations against him are absolutely false. To the contrary, the materials are in abundance to hold his involvement in this case _prima facie_ and in such a case, rigour under Section 37 would definitely apply. In such cases, the general principles governing the prosecution of incarceration and the personal liberty of a foreigner protected by Article 21 of the Constitution of India shall be subject to the provisions of a special enactment, since special law supersedes the general law. Since Section 37 mandates satisfaction of twin conditions, this Court cannot grant bail in cases involving commercial quantity, until satisfying the conditions provided therein. B.A.No.1910 of 2023 ..7.. 7. Hence, 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 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 B.A.No.1910 of 2023 ..8.. 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 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 B.A.No.1910 of 2023 ..9.. 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: (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]. B.A.No.1910 of 2023 ..10.. Latest decision on this point is [2023 Cri.LJ 799], _**Union of India v. Jitentra Giri**_ . 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 on bail. B.A.No.1910 of 2023 **==> picture [26 x 9] intentionally omitted <==** In the above facts and circumstances, I am not inclined to grant bail to the petitioner. Accordingly, the bail application stands dismissed. Sd/- **A. BADHARUDEEN JUDGE** ds B.A.No.1910 of 2023 ..12.. ## **APPENDIX OF BAIL APPL. 1910/2023** **PETITIONER ANNEXURES** **Annexure A1** **CERTIFIED COPY OF THE ORDER DATED 08.12.2022 IN CRL.M.P.NO.885/2022 IN S.C.NO. 825/2022 OF ADDITIONAL DISTRICT & SESSIONS JUDGE, N. PARAVUR**