B.A. No. 9126 of 2023

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ``` ## _`BAIL APPL. NO. 9126 OF 2023`_ ``` CRIME NO.1092/2021 OF Tirur Police Station, Malappuram ``` ## _`PETITIONER/S:`_ ``` BINEETH AGED 32 YEARS SON OF THANKAPPAN, VETTAPARAMBAN HOUSE, MATTATHUR P O, THRISSUR, PIN - 680684 BY ADVS. JITHIN BABU A ARUN SAMUEL ``` ## _`RESPONDENT/S:`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## _`OTHER PRESENT:`_ ``` SR PP K DENNY DEVASSY ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No. 9126 of 2023 ``` ``` ..2.. ``` ## A. BADHARUDEEN J. ## **=====================** ## B.A. No. 9126 of 2023 ## **========================** ## _**O R D E R**_ ## **Dated this the 15[th] day of November, 2023** This is the second bail application filed under Section 439 of the Code of Criminal Procedure by the 3[rd] accused in Crime No.1092/2021 of Tirur Police Station, Malappuram now pending as S.C.No.344/2022 before the Special Court under the Narcotic Drugs and Psychotropic Substances Act, Manjeri, 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant records placed by the learned Public Prosecutor. 3. The prosecution allegations is that at about 11.50 hours on 03.09.2021the petitioner was found carrying 230 kg of Ganja in contravention to the provisions of the Narcotic Drugs and Psychotropics Substances Act (`NDPS Act' for short hereinafter) ``` B.A. No. 9126 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** and he was nabbed while he was transporting the said contraband in a lorry bearing Registration No.KA 19AC 5881 when the above lorry reached Chamravattam Tirur public road. Accordingly, accused 1 to 3 were nabbed on the primary finding that they have transported the contraband coming to the tune of commercial quantity. 4. The learned counsel for the petitioner pressed for grant of regular bail for the second time on the submission that he has been in custody from 03.09.2021 where trial not started. 5. Whereas the learned Public Prosecutor strongly opposed bail on the submission that accused 1 to 3 including the petitioner were nabbed by the police while they were jointly transporting 230 kg. of Ganja. Since the complicity of the petitioner is on par with accused 1 and 2, the petitioner cannot be released on bail and grant of bail is subject to the satisfaction covered under Section 37 of the NDPS Act. The learned Public Prosecutor submitted further that trial is going on in a case involving red handed recovery of 230 kg of Ganja and therefore the petitioner ``` B.A. No. 9126 of 2023 ``` ``` ..4.. ``` could not be released on bail and the petitioner is a person having criminal antecedents by involving in three more crimes as under:- - _i. Crime No.96/2018 (Vellikulangara police station) for the offence punishable under Sections 392 r/w 34 of the IPC;_ - _ii. Crime No. 183/2018 for the offences punishable under Sections 427, 436, 307 of the IPC;_ _iii. Crime No. 2786/2016 (Ollur police Station) for the offences punishable under Sections 406, 420 of the IPC._ 6. Initially, the regular bail application filed by the petitioner was dismissed mainly as per the discussions in Paragraphs No. 6 to 13 and the same is as under:- _“6. On perusal of the prosecution records, accused 1 to 3 were nabbed by the police red-handedly along with 230 kg of Ganja. Therefore, the offences alleged to have been committed by the accused herein are well made out, prima facie, and quantity of contraband is commercial. Therefore, grant of bail shall be subject to the restrictions contained in_ ``` B.A. No. 9126 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _Section 37 of the NDPS Act._ _7. In so far as, in cases, where 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_ ``` B.A. No. 9126 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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 charged and this reasonable belief contemplated in turn points to existence of_ ``` B.A. No. 9126 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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: (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_ ``` B.A. No. 9126 of 2023 ``` ``` ..8.. ``` _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]. 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_ ``` B.A. No. 9126 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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._ _Hence the petition stands dismissed.”_ 7. In this matter, a report from the Special Judge (SC/ST (POA) Act & NDPS Act Cases, Manjeri was called for. As per letter dated 03.11.2023, the learned Special Judge submitted that, in this case, trial already started, PWs 1 to 3 were examined, and the matter was scheduled for examination of other witnesses starting from 10.11.2023 to 15.11.2023. ``` B.A. No. 9126 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 8. In such view of the matter, there is no necessity to grant bail in this case and the trial could be completed without much delay. 9. Earlier bail application was dismissed holding the view that the rider under Section 37 of the NDPS Act could not be diluted in the case of the petitioner, who has involved in possession and transportation of 230 kg of Ganja. Therefore, the second application for bail also cannot be allowed. Hence, the petition stands dismissed. ## **Sd/-** ## **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```