Bail Application No. 10407 of 2023

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 19[TH] DAY OF JANUARY 2024 / 29TH POUSHA, 1945 BAIL APPL. NO. 10407 OF 2023 ``` ``` CRIME NO.930/2023 OF THRIKKAKARA POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT CRMC 1920/2023 OF I ADDITIONAL DISTRICT ``` ``` COURT, ERNAKULAM ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` AJMAL AHAMMED, AGED 20 YEARS S/O ALIKUNKHI BEARY MARADAMOOLE, NETTANIGE, BELLUR VILLAGE, KASARGODE, PIN - 671543 ``` ``` BY ADVS. P.R.JAYASANKAR DARSAN SOMANATH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`B.A. NO.10407 OF 2023 2`** ## **Dated this the 19[th] day of January, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, the Code), by the first accused in Crime No.930/2023 of the Thrikkakara Police Station, registered against the accused (3 in number) alleging them to have committed the offence punishable under Sections 20 (b) (ii) C and 29 of the Narcotic Drugs and Psychotropic Substances Act (for shot, the Act). The petitioner was arrested on 8.6.2023. 2. The essence of the prosecution case is that: in furtherance of the conspiracy hatched between the accused, around 9.30 a.m., on 8.6.2023, the accused were found in possession of 24.232 kg of ganja in contravention of the provisions of the Act. Thus, the ## **`B.A. NO.10407 OF 2023 3`** accused have committed the above offences. 3. Heard; Sri.P.R. Jayasankar, the learned 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 accusation levelled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 8.6.2023. The investigation in the case is complete and the charge has been laid. The petitioner has no criminal antecedents. The petitioner’s continued detention is unnecessary. Hence, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. She contended that the contraband that has been seized is of commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Hence ## **`B.A. NO.10407 OF 2023 4`** the application may be dismissed. 6. When the bail application came up for consideration on 9.1.2024, this Court had called for a report from the court below to ascertain the status and the reasonable time period required to dispose of S.C.No.1791/2023. 7. Pursuant to the above order, the learned Sessions Judge, by communication dated 17.1.2024, has informed this Court that the court charge in the case is not yet framed. There are 34 witnesses cited in the case. The Court of the Additional Sessions Judge-II is lying vacant and the present officer is holding charge. There are 11 time bound matters to be disposed of. The court below requires at least six months time to dispose of the case after the new Presiding Officer takes charge. 8. Indisputably, the contraband that has been seized is of commercial quantity. Therefore, the rigour under Section 37 of the Act applies. 9. Section 37 of the Narcotic Drugs and Psychotropic ## **`B.A. NO.10407 OF 2023 5`** 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 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. 10. 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 ## **`B.A. NO.10407 OF 2023 6`** 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. 11. 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”. ## 12. In **Union of India v. Mohd. Nawaz Khan** ## **`B.A. NO.10407 OF 2023 7`** [(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”. 13. 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. 14. 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: ## **`B.A. NO.10407 OF 2023 8`** “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”. On a meticulous scrutiny of the factual matrix, the law referred to above, and taking into account the gravity of accusations leveled against the petitioner, the potential severity of the punishment that can be imposed on him in the event of him being found guilty, the commercial quantity of the contraband involved in the case, I am at this stage satisfied that there are no 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 ## **`B.A. NO.10407 OF 2023 9`** similar offence, if enlarged on bail, so as to dilute the rigour under Sec.37 of the Act. Nonetheless, I direct the court below to consider and dispose of S.C. No.1791/2023, in accordance with law and as expeditiously as possible. Resultantly, the application is dismissed. **SD/-** **C.S.DIAS, JUDGE** rmm19/1/2024