B.A.No.9982/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 BAIL APPL. NO. 9982 OF 2022** **AGAINST THE ORDER/JUDGMENTCRMC 2497/2022 OF I ADDITIONAL** **DISTRICT COURT, ERNAKULAM CRIME NO.74 OF 2022 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC** ## **SPECIAL SQUAD, ERNAKULAM** ## **PETITIONER/ACCUSED:** B.J. JOHNSON, AGED 61 YEARS S/O JOSEPH 17/1522, BALAYIL HOUSE, MUNDEMVELI P.O, ERNAKULAM DISTRICT, PIN – 682507. BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. SHRI P G MANU, SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.03.2023, THE COURT ON 17.03.2023 DELIVERED THE FOLLOWING: B.A.No.9982/2022 2 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.9982 of 2022_ ================================ _Dated this the 17[th] day of March_ ## _**O R D E R**_ This is an application filed by the 1[st] accused in Crime No.74/2022 of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, seeking the relief of regular bail in this petition filed under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary as such along with report of the Investigating Officer, placed by the learned Public Prosecutor. B.A.No.9982/2022 3 3. The prosecution case is that at about 2.30 a.m on 14.10.2022, Excise Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad, Ernakulam and party seized 2.3485 gram of LSD (115 Nos) and 77 Gram of Hashish Oil from the 1[st] accused and he was arrested on the spot. The 2[nd] accused is not arrested so far. Pursuant to recovery and arrest of the 1[st] accused crime alleging commission of offences punishable under Sections 22(c), 20(b)ii(A) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act' hereinafter) was registered and the same is on investigation. 4. The learned counsel for the petitioner, who pressed for grant of regular bail to the petitioner, submitted that the petitioner is innocent and the allegations are false. Highlighting the progress of investigation and custody of the petitioner from 14.10.2022, the learned counsel for the petitioner pursued the relief of regular bail with offer to co-operate with the B.A.No.9982/2022 4 investigation. It is submitted by the learned counsel for the petitioner that in this matter recovery was effected at odd hours from the bed room of the son of the present petitioner and the petitioner was nabbed by the police since they could not trace and arrest his son who got arrayed as the 2[nd] accused in this crime. The learned counsel for the petitioner submitted that the petitioner has no nexus with the contraband seized. Further the wife of the petitioner filed a complaint before the Excise Commissioner and Deputy Excise Commissioner as on 14.10.2022 regarding the false implication of the petitioner in this crime. It is also pointed out by the learned counsel for the petitioner that the residents nearby the residence of the petitioner also filed a mass petition to the Excise Commissioner to look into the illegal detention of the petitioner without substantive materials. According to the learned counsel for the petitioner, even though the recovery mahazar would go to show that the recovery was effected from one of the B.A.No.9982/2022 5 rooms of the house, the Excise party did not search any other part of the house and therefore the recovery is in the midst of doubts. Accordingly, it is submitted further that in view of the above facts, the rigour of Section 37 of the NDPS Act has no application in the present case. 5. Refuting this contention, the learned Public Prosecutor submitted that going by the recovery mahazar it could be gathered that the search itself was based on an information to the effect that the petitioner herein had kept the contraband at his house. Thereafter, the Excise Party searched the house and recovered the contraband from one bed room and accordingly the petitioner was arrested from the spot. The false implication and the absolute innocence, as pointed out by the learned counsel for the petitioner, could not be justified and even the 2[nd] accused, who is none other than the son of the petitioner, who also has role in possessing the contraband not so far arrested and he has been absconding. Since B.A.No.9982/2022 6 the prosecution case is established _prima facie,_ the petitioner cannot be released on bail. It is submitted further that since the contraband is commercial quantity, the rigour under Section 37 of the NDPS Act would apply and therefore this Court cannot grant bail without satisfying the twin conditions, provided therein. 6. While appreciating the rival contentions to appraise the absolute innocence as canvassed by the learned counsel for the petitioner, reference to the recovery mahazar is essential. In the recovery mahazar, it has been stated that a secret information was received as to possession of contraband at the house of the petitioner and accordingly search was conducted at 2.30 a.m on 14.10.2022. On search, the contraband was recovered from a cot kept beneath the bed at the adjoining bed room of the house of the petitioner. Accordingly, the mahazar was prepared in the presence of witnesses who were available at the time of recovery and the B.A.No.9982/2022 7 accused was arrested from the spot itself on the allegation that he had possessed the contraband along with his son. 7. Though it is argued by the learned counsel for the petitioner that as per the arrest memo the witnesses signed in the arrest memo are 2 persons hailing from Thrissur and Alappuzha districts and therefore, the recovery and the presence of the witnesses are in doubt and also there is difference in the signatures of the witnesses in the arrest memo and mahazars, those are matters of evidence and this Court cannot consider all those aspects when considering grant of bail, during investigating stage in minute neceties. However, it is pertinent to note that in the arrest notice prepared at 2.25 p.m soon after the recovery, the petitioner's arrest was recorded by the Excise party, arraying him as an accused. It is true that in the recovery mahazar the details regarding search in the other parts of the house were not stated. However, the same by itself is not a reason to disbelieve red- B.A.No.9982/2022 8 handed recovery effected as a result of search conducted on the basis of secret information positing possession of contraband by the accused at his house. Thus it appears that the anomalies pointed out by the learned counsel for the petitioner would require adjudication after recording of evidence. However, the available documents _prima facie_ established the prosecution case to hold that the petitioner had possessed the contraband at his house against the prohibitions contained in the NDPS Act. A petition filed by the wife after arresting the petitioner and the mass petition filed by the nearby residents after the occurrence, are insufficient to disbelieve the prosecution case in any manner, at this stage. Since the quantity of contraband is commercial, this Court must satisfy the conditions provided under Section 37 of the NDPS Act, before granting bail to the petitioner. B.A.No.9982/2022 9 8. 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 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._ B.A.No.9982/2022 10 9. 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 while on bail. 10. 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 B.A.No.9982/2022 11 recording of satisfaction that the accused is not guilty of the offence charged. 11. 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. 12. 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**_ B.A.No.9982/2022 12 _**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]. The latest decision on . this point is [2023 CriLJ 799], _**Union of India v. Jitentra Giri**_ B.A.No.9982/2022 13 13. 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. 14. 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 B.A.No.9982/2022 14 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.9982/2022 15 ## **APPENDIX OF BAIL APPL. 9982/2022** PETITIONER'S ANNEXURES |Annexure I|THE TRUE COPY OF THE REPRESENTATIONS| |---|---| ||MADE BY THE WIFE OF THE PETITIONER DATED| ||14.10.2022 BEFORE THE CHIEF MINISTER OF| ||KERALA , EXCISE COMMISSIONER AT| ||THIRUVANTHAPURAM AND DEPUTY EXCISE| ||COMMISSIONER AT ERNAKULAM.| |Annexure II|TRUE COPY OF THE ARREST MEMO PREPARED BY| ||THE<br>INVESTIGATING<br>OFFICER<br>DATED| ||14.10.2022.| |Annexure III|TRUE COPY OF THE MASS PETITION SUBMITTED| ||BY THE PEOPLE OF THE LOCALITY ON| ||15.10.2022<br>BEFORE<br>THE<br>EXCISE| ||COMMISSIONER IN THIRUVANTHAPURAM AND| ||BEFORE THE KERALA STATE HUMAN RIGHTS| ||COMMISSIONER AT THIRUVANTHAPURAM.| |Annexure IV|A TRUE COPY OF THE ORDER OF THE COURT OF| ||SESSIONS ERNAKULAM IN CRL MC NO| ||2497/2022 DATED 11.11.2022.| |Annexure-V|A TRUE COPY OF THE SEIZURE MAHAZAR DATED| ||14.10.2022.| |Annexure-VI|THE RUE COPY OF THE TIME AND OCCURRENCE| ||REPORT IN NDPS CR NO. 74/2022.| |Annexure-VII|THE TRUE COPY OF THE REPORT DATED| ||14.10.2022 SUBMITTED BY THE DETECTION| ||OFFICER BEFORE THE JMFC-II, KOCHI.| B.A.No.9982/2022 16 |Annexure-VIII|CERTIFIED<br>COPY<br>OF<br>THE<br>MEDICAL| |---|---| ||EXAMINATION REPORT OF THE PETITIONER| ||DATED 14.10.2022 ISSUED BY THE GENERAL| ||HOSPITAL ERNAKULAM.| |Annexure-IX|A TRUE COPY OF THE SEARCH LIST UNDER| ||SECTION 50 OF THE NDPS ACT DATED| ||14.10.2022.| |Annexure-X|A TRUE COPY OF THE SEARCH LIST UNDER| ||SECTION 42(2) OF THE NDPS ACT DATED| ||14.10.2022.| |Annexure-XI|A TRUE COPY OF FORM NO. 15 DOCUMENT.|