Bail applications in Crime No. 572 of 2021 (Perinthalmanna PS) Malappuram: Siril Babu vs State of Kerala; Sadiq P vs State of Kerala

Bail Appl. Nos.7740/2021, 7801/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 BAIL APPL. NO. 7740 OF 2021** **(CRIME NO.572 OF 2021 OF PERINTHALMANNA POLICE STATION,** ## **MALAPPURAM)** ## **PETITIONER/2ND ACCUSED** SIRIL BABU AGED 43 YEARS S/O. PETER, VELEPPARAMBIL HOUSE, MANNARKKAD, KUNTHIPPUZHA, COLLEGE P.O, PALAKKAD DISTRICT. BY ADV K.T.THOMAS ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 ## **OTHER PRESENT:** SMT. SREEJA.V- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 9.12.2021, ALONG WITH Bail Appl..7801/2021, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: Bail Appl. Nos.7740/2021, 7801/2021 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 BAIL APPL. NO. 7801 OF 2021** **(CRIME NO.572 OF 2021 OF PERINTHALMANNA POLICE STATION,** ## **MALAPPURAM)** ## **PETITIONER/1ST ACCUSED :** SADIQ P AGED 41 YEARS S/O HAMZA, POOLOMA HOUSE, MANNARKKAD, PAYYANADAM, PALAKKAD DISTRICT. BY ADV K.T.THOMAS ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY PUBLIC PROSECUTOR SMT. SREEJA V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.12.2021, ALONG WITH Bail Appl..7740/2021, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: Bail Appl. Nos.7740/2021, 7801/2021 3 ## ORDER ## [Bail Appl. Nos.7740/2021, 7801/2021] Applications for regular bail. 2. The petitioner in B.A.No.7740 of 2021 is the 2[nd] accused in Crime No.572 of 2021 of Perinthalmanna police station, Malappuram registered for the offences punishable under Sections 20(b)(ii)C, 29 and 31 of the Narcotic Drugs and Psychotropic Substance Act ('NDPS Act' for short). B.A.No.7801 of 2021 is filed by the 1[st] accused in the very same crime. 3. The petitioners are in custody since 14.7.2021 4. The prosecution case is that on 14.7.2021 at about 15.53 hours the Inspector of Police, Perinthalmanna and party found the petitioners/1[st] and 2[nd] accused in possession and engaged with transportation of 22.33 kgs of ganja packed in 11 packets and concealed in a goods vehicle bearing No.KL 50H 9125 for the purpose of sale in contravention of the provisions of the NDPS act and thereby committed the aforesaid offences. 5. The learned counsel for the 2[nd] accused has a case that only 2.06 kgs of ganja was seized by the Inspector of Police, Bail Appl. Nos.7740/2021, 7801/2021 4 Perinthalmanna and the allegation that 23.00 kg of ganja was seized is not correct. The learned counsel for the 1[st] accused has contended that nothing was seized from his possession and he has been falsely implicated in the case. 6. The definite case of the prosecution is that the search was conducted by the Inspector of Perinthalmanna police station on getting a discreet information that ganja is being transported concealed in a goods vehicle bearing No.KL 50H 9125. On receipt of information after complying with the formalities he conducted a search with his team and 22.330 kgs of ganja were found kept in 11 packets, concealed in the vehicle. The contraband was seized as contemplated under the provisions of the NDPS Act and the petitioners were arrested. Though the learned counsel for the 2[nd] accused has contended that even if the case of the prosecution is accepted, the total quantity involved in the case is 2.06 kg and therefore he is entitled for bail. But a perusal of mahazar would reveals that the information received was specific to the effect that the contraband was concealed in a goods vehicle bearing No.KL 50 H 9125 parked near a waiting shed by two persons. As per the prosecution case the accused 1 and 2/petitioners were found sitting inside the cabin of the vehicle and they were carrying Bail Appl. Nos.7740/2021, 7801/2021 5 a packet covered in a blue plastic cover and the said cover was opened by them and in the cover one packet of contraband was found with the belongings of the 2[nd] accused including his driving license, adhar card, debit card of SBI, pan card etc. Another packet was found in the dashboard with the belongings of the 1[st] accused and the balance in the goods vehicle. The prosecution case itself is that they were found in conscious possession of the contraband article and so it is not possible to infer at this stage that the 2[nd] accused was having only 2.06 kg in his possession ,as 18.290 kg and 2.60 kg of two pockets were found in the dashboard. Thus in total 22.430 was found from the conscious possession of both the petitioners by the detecting officer. Therefore prima facie the allegation of the learned counsel for the 2[nd] accused that only 2.06 kg of ganja was seized from his possession is not correct. So the quantity of the contraband involved is more than commercial quantity. The records would prima facie reveal that the detection by the detecting officer was after complying with the formalities prescribed under the Act. When commercial quantity of the contraband is involved granting of bail is subject to the limitations under Section 37 of the Act. Section 37 of the NDPS Act reads as follows: Bail Appl. Nos.7740/2021, 7801/2021 6 “37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974),- (a) every offfence 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 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]” 7. So as per Section 37 only if there are reasonable grounds to believe that the accused has not committed an offence he is entitled for bail. But at the same time he is also supposed to prove his case that he is not likely to commit any offence while on bail. 8. Interpreting the word 'reasonable grounds to believe ' in Section 37(1)(b)(ii) of the NDPS Act, the Apex Court in **Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798]** held as Bail Appl. Nos.7740/2021, 7801/2021 7 ## 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. 8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. 10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn of Greater Mumbai v. Kamla Mills Ltd) 11. The court while considering the application for bail with reference to Section 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.” In **State of Kerala v. Rajesh** (2020(1) KHC 557) the Apex Court while dealing with a case in which commercial Bail Appl. Nos.7740/2021, 7801/2021 8 ## quantity is involved again held as follows: “20. The scheme of S. 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S. 439 of the Cr.PC, but is also subject to the limitation placed by S.37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban of granting bail operates. 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of S.37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” 9. It is doubtless that stringent parameters are imposed in the matter of bail itself is because of the seriousness of the offences. According to the the learned Public Prosecutor the investigation of the case is only progressing. It is obvious that the investigating Bail Appl. Nos.7740/2021, 7801/2021 9 agency require more time to verify whether the petitioners were getting financial assistance from any other source to procure the contraband article. The investigating agency has to probe deep into the matter so as to find out the source and such other things. Moreover, it is significant to note that the 1[st] accused is having criminal antecedents as he is involved in Crime No.111 of 2016 of Mukkam police station registered under the NDPS Act. He was even convicted in that case where he was tried as the sole accused in SC No.52/2017. He is also the accused in Crime No.732 of 2019 of Mannarkad police station and Crime No.636 of 2020 of Perinthalmanna police station. From the records I also find that the petitioners if released on bail, there is every possibility to flee from justice and to commit similar offences, mainly because of the reason that the 1[st] accused is having criminal antecedents. Therefore, I am not inclined to accept the request of the petitioners to release them on bail. Dismissed. Sd/- SHIRCY V JUDGE smm