Balodra Bonju Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023/4TH PHALGUNA, 1944 BAIL APPL. NO.897 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED IN 09.01.2023 IN CRMP 9/2023 IN SC NO.1202/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST) & NDPS ACT, MANJERI. CRIME NO.30/2021 OF PARAPPANANGADI EXCISE RANGE OFFICE** ## **PETITIONER/4TH ACCUSED:** BALODRA BONJU BABU, AGED 34 YEARS, S/O.MATSYA LINGAM,34/22 OLDA VILLAGE, SANTHARI.P.O, HUKKAMPETTI POLICE STATION LIMIT, ANDHRA PRADESH-344033. BY ADVS. K.K.SETHUKUMAR SARITHA G.R. ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. BY ADV. SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.897 of 2023** 2 ## **O R D E R** ## **Dated, this the 23[th] February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, and the petitioner is the 4[th] accused in crime No.30/2021 of Excise Range Office, Parappanangadi, where he alleged to have committed offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as 'NDPS Act', for short), and the petitioner seeks regular bail. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Perused the relevant documents placed by the learned Public Prosecutor form part of the Case Diary. 4. The prosecution allegation is that at 10:00 a.m. on 04.08.2021, the accused Nos.1 to 3 were found in possession of 121.594 Kg of Ganja. ## **B.A. No.897 of 2023** 3 The petitioner, who is arrayed as the 4[th] accused subsequently incorporated in this crime on the allegation that, he was the person, who arranged the contraband from State of Andhra Pradesh and transported the same in a Pickup Van bearing registration No.KL-32G-4055 owned by the 2[nd] accused. This is the premise on which the prosecution alleges commission of the above offences. 5. It is submitted by the learned counsel for the petitioner that the petitioner is innocent and he has no connection with this crime. According to the learned counsel, he has been implicated in this crime without sufficient materials and, therefore, he is liable to be released on regular bail, taking note of his prolonged custody. 6. Whereas, the learned Public Prosecutor read out the relevant records forming part of the Case Diary and it is submitted that when the 1[st] accused was arrested, he stated that the 4 ## **B.A. No.897 of 2023** contraband was given by a person having mobile phone No.9440949197 and it was identified that the person, who had been using the mobile is the 4[th] accused. Thereafter, the bank account of the petitioner was searched and it was found that in between 18.06.2021 and 23.06.2021, in the account of the petitioner Rs.2,31,000/-, Rs.1,75,000/- and Rs.4,06,000/- were transferred by the 2[nd] accused herein. Further, it is pointed out that the CDR would go to show that there were constant calls between the 2[nd] accused and the petitioner in between 19.06.2021 and 21.06.2021. It is pointed out by the learned Public Prosecutor further that the petitioner had involved in another Crime No.1472/2021 of Angamaly Police Station, where also the quantity of contraband would come to 225.380 Kg of Ganja (commercial quantity). Therefore, if he will be released on bail, he will repeat the said offence and the rider under Section 37 would apply in this case. ## **B.A. No.897 of 2023** 5 7. Though it is submitted by the learned counsel for the petitioner that the petitioner is innocent and accused Nos.1 to 3 were granted bail by this Court. 8. On perusal of the bail order pertaining to accused Nos.1 to 3, it appears that this Court granted statutory bail to accused Nos.1 to 3, since the prosecution miserably failed to file final report within the statutory period. 8. Thus, it appears that grant of statutory bail to the accused, who were earlier arrested, is not a ground to grant regular bail to the petitioner, where final report already filed within the statutory period after recording his arrest. That apart, it is to be noticed that the petitioner has involvement in two crimes involving commercial quantity at present. 9. When the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. 6 ## **B.A. No.897 of 2023** 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 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._ 10. On a perusal of the Section 37(1)(a) (i), when the Public Prosecutor opposes bail **B.A. No.897 of 2023** 7 application of an accused 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. 11. 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. 8 ## **B.A. No.897 of 2023** 12. 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. 13. 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 ## **B.A. No.897 of 2023** 9 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 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 _**Union of India v. Jitentra Giri**_ [2023 Cri.LJ 799]. ## **B.A. No.897 of 2023** 10 14. 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. In fact, this Court cannot hold that the petitioner did not commit the offence alleged _prima facie_ and he will not commit any offence ## **B.A. No.897 of 2023** **==> picture [12 x 9] intentionally omitted <==** in future. Therefore, this bail application fails and is accordingly dismissed. Sd/- **A.BADHARUDEEN, JUDGE.** ww 12 ## **B.A. No.897 of 2023** ## **APPENDIX OF BAIL APPL. 897/2023** PETITIONER'S ANNEXURES: ANNEXURE1 CERTIFIED COPY OF THE ORDER IN CRL.MP.NO 9/2023 DATED 09/01/2023 OF THE COURT OF SPECIAL JUDGE SC/ST (POA) & NDPS ACT, MANJERI. ANNEXURE2 TRUE PHOTOCOPY OF THE BAIL ORDER OF THE HON'BLE HIGH COURT OF KERALA IN BA NO.7878/2021 DATED 08/02/2022.