Badusha v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 BAIL APPL. NO. 10842 OF 2023 ``` ``` CRIME NO.1592/2023 OF KOLLAM EAST POLICE STATION, KOLLAM ``` ``` AGAINST THE ORDER DATED 13.11.2023 IN CRMC NO.2358 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOLLAM ``` ## **`PETITIONER/ACCUSED 1:`** ``` BADUSHA, AGED 23 YEARS S/O. SHAJAHAN, BADUSHA MANZIL, PATTANI THANGAL NAGAR – 154, ERAVIPURAM VILLAGE, KOLLAM, PIN - 691011 ``` ``` BY ADVS. M.KIRANLAL R.RAJESH (VARKALA) SAILAKSHMI MENON MANU RAMACHANDRAN T.S.SARATH SAMEER M NAIR ``` ## **`RESPONDENT/STATE/COMPLALINANT:`** ``` 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 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.10842 of 2023** ``` 2 ``` ## **Dated this the 12[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by first accused in Crime. No.1592/2023 of the Kollam East Police Station, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 08.10.2023. 2. The essence of the prosecution case is that: the accused 1 to 3 had hatched a conspiracy, and the second accused had purchased 75 grams of MDMA from the third accused for Rs. 80,000/-. Subsequently, the second accused entrusted the contraband to the first accused for sale by receiving an amount of Rs.1/- lakh. On 08.10.2023, at around 21.50 hours, the first accused was arrested at the KSRTC Junction, Kollam, with 75 grams **B.A. No.10842 of 2023** ``` 3 ``` of MDMA, which was meant for sale. Thus, the accused have committed the above offences. 3. Heard; Smt. Seetha, S. the learned Special Public Prosecutor. 4. Even though the bail application was filed through Sri. Kiran Lal. M, when the application was taken up for consideration on 23.05.2024, he stated that he has relinquished his memo. Consequently, this Court directed the Registry to inform the Superintendent of the Jail where the petitioner is remanded to inform the petitioner that his counsel has relinquished his memo and to ascertain as to whether the petitioner desires to engage another counsel or needs the assistance of legal aid counsel. Even though the matter was communicated to the Jail Superintendent, there is no reply. Hence, it is assumed that the petitioner does not require any legal assistance. 5. In the bail application it is contended that the petitioner is totally innocent of the **B.A. No.10842 of 2023** ``` 4 ``` accusations levelled against him. He has been falsely implicated in the crime solely on the basis of circumstantial evidence. The contraband was not seized from the petitioner. The petitioner has been in judicial custody since 08.10.2023, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the contraband involved in the case is of a commercial quantity and was seized from the petitioner. There are incriminating materials to substantiate the petitioner’s involvement in the crime. Since the contraband involved in the case is of a commercial quantity, the rigour under Section 37 of the Act applies. If the petitioner is enlarged on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. **B.A. No.10842 of 2023** ``` 5 ``` 7. The prosecution allegation is that, the accused 1 to 3 had hatched a conspiracy for the sale of the contraband article. Accordingly, the second accused purchased the contraband from the third accused and gave it to the first accused for Rs.1/- lakh. The first accused was arrested with the contraband. Indisputably, the contraband that is involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act will apply. 8. 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 **B.A. No.10842 of 2023** ``` 6 ``` 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. 9. 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 above and on the accused satisfying the twin conditions under Sec.37 of the Act. **B.A. No.10842 of 2023** ``` 7 ``` 10. 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”. 11. 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 **B.A. No.10842 of 2023** ``` 8 ``` 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”. 12. 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. 13. 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 **B.A. No.10842 of 2023** ## **`9`** 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”. 14. 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 is involved in the case and the prima facie material that has been placed before this Court which establishes the involvement of the petitioner in the crime, I am not satisfied that there are reasonable grounds 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 reasonable grounds to dilute the rigour under Section 37 of the Act. Therefore, I hold ## **B.A. No.10842 of 2023** **==> picture [19 x 9] intentionally omitted <==** that the application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- mtk/12.06.24 **C.S.DIAS, JUDGE**