Bail Appl. No. 9813 of 2022

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ``` BAIL APPL. NO. 9813 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENTCRMC 2298/2022 OF DISTRICT COURT & ``` ``` SESSIONS COURT,KOLLAM ``` ``` CRMC 2298/2022 OF DISTRICT COURT & SESSIONS COURT, KOLLAM CRIME NO.1128/2022 OF EAST POLICE STATION, KOLLAM ``` ## `PETITIONER/ACCUSED A3:` ``` AL AMEEN, AGED 26 YEARS S/O KABEER, AL AMEEN MANZIL, KANNANALLOOR, THRIKKOOVILVATTAM, KOLLAM, PIN – 691576. ``` ``` BY ADVS. KRISHNADAS P. NAIR K.G.MANOJ KUMAR K.L.SREEKALA HARIDAS P.NAIR ANU PRABHAKAR SHINTO THOMAS M.A.VINOD ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` 2THE STATION HOUSE OFFICER, EAST POLICE STATION, KOLLAM,KOLLAM DISTRCIT, PIN – 691001. SENIOR PUBLIC PROSECUTOR SMT.T V NEEMA ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13.03.2023, THE COURT ON 28.03.2023 DELIVERED THE FOLLOWING: ``` B.A.No.9813/2022 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.9813 of 2022_ _================================ Dated this the 28th day of March, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the 3rd accused in Crime No.1128/2022 of Kollam East Police Station. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary as such along with the report of the Investigating Officer. 3. The prosecution case is that accused Nos.1 to 3, with the knowledge that possession and sale of MDMA is a serious offence, engaged in possession and sale of MDMA. The specific allegation is that, the 1st accused was found in possession of 57.716 gram of MDMA at 11.30 hours on 31.10.2022 in front of bus waiting shed near Kollam District Co-operative Bank. Accordingly, he was nabbed and the contraband was taken into custody. Later, during B.A.No.9813/2022 3 investigation it was revealed that accused Nos.2 and 3 brought the contraband for sale and entrusted the 1st accused to sell the same. Subsequently, when accused No.3 was arrested, 100 gram of Ganja and 80 gram of pollen grain of ganja were seized from his custody on 10.11.2022. This is the base on which the prosecution alleges commission of offences punishable under Sections 22(c), 20(b)(II) (A) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act’ for short hereinafter). 4. While pursuing the relief of regular bail to the petitioner, who is arrayed as accused No.3 in this crime, the learned counsel for the petitioner submitted that the petitioner is innocent and the allegations against the petitioner are false. It is submitted that there is no materials available for the prosecution to substantiate involvement of accused No.3 in this crime and merely relying on the confession statement of accused No.1, he was nabbed and detained in custody. According to the learned counsel for the petitioner, since the petitioner has been in custody from B.A.No.9813/2022 4 10.11.2022 and his complicity is not established in any manner, he is liable to be released on bail and for which the rider under Section 37 would not apply though the contraband involved is commercial quantity. 5. While strongly opposing the bail, the learned Public Prosecutor would submit that though the contraband, which would come to 57.716 gram of MDMA, was seized from accused No.1, it has been revealed during investigation that accused Nos.2 and 3 are the persons, who brought the contraband and entrusted the same to accused No.1 for sale. In this connection, the learned Public Prosecutor given emphasis to the statement of the 1st accused and also entrustment of money by accused Nos.2 and 3 with the 1st accused. That apart, it is submitted that even on search of the 3rd accused also, 100 gram of ganja and 80 gram of pollen grain of ganja were seized from his possession, showing his involvement in NDPS crime. Therefore, the complicity of the petitioner in this crime is _prima facie_ made out and in such a case, the restrictions B.A.No.9813/2022 5 contained in Section 37 of the NDPS Act would squarely apply and this Court cannot grant bail without satisfying the twin conditions provided therein. 6. In this case, initially, 57.716 gram of MDMA was seized from the 1st accused. Thereafter, accused No.1 was taken to Karnataka State to ascertain the involvement of accused No.2. Then it was found that the mobile phone of accused No.2 was switched off. Later, accused No.1 revealed that accused No.2 and accused No.3/the petitioner herein, entrusted the contraband at a flat, where accused No.1 had been residing in Bangalore. Thereafter, the mobile phone of Al Ameen/the petitioner also was switched off. On investigation conducted with reference to the mobile phone of the petitioner, on 10.11.2022 the police party reached at the flat of the 3rd accused and he was questioned in the presence of accused No.1 and hence the involvement of the petitioner also in this crime was reported. Thereafter, as per the disclosure statement given by the petitioner herein, 100 gram of B.A.No.9813/2022 6 ganja and 80 gram of pollen grain of ganja were recovered at the instance of the petitioner. Further, in the booklet possessed by accused No.3, accused Nos.1 to 3 wrote certain aspects dealing with sale of contraband. Thereafter accused No.2 also was arrested. The booklet seized by the police also would go to show remittance of amount during 2021 with certain descriptions in grams. On perusal of the entire case records, the absolute innocence, as contended by the learned counsel for the petitioner, could not be gathered and his involvement in this crime is discernible, _prima facie_ . Therefore, the petitioner cannot be released on bail without satisfying the twin conditions provided under Section 37 of the NDPS Act. 7. When the prosecution alleges possession of commercial quantity of contraband, the rigour 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_ B.A.No.9813/2022 7 _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 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 B.A.No.9813/2022 8 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 B.A.No.9813/2022 9 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 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 B.A.No.9813/2022 10 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]. The latest decision on this point is [2023 CriLJ 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. B.A.No.9813/2022 11 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, application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.9813/2022 12 ## **`APPENDIX OF BAIL APPL. 9813/2022`** ``` PETITIONER'S ANNEXURES ``` ``` Annexure A ``` ``` THE COPY OF THE ORDER IN BAIL APPLICATION CRL MC NO.2298 /2022 BEFORE THE SESSIONS COURT; WAS DISMISSED ON 23.11.2022 ```