Bineeth v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 BAIL APPL. NO. 587 OF 2023** **AGAINST THE ORDER/JUDGMENTSC 344/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI CRIME NO.1092/2021 OF TIRUR POLICE STATION, MALAPPURAM PETITIONER/3RD ACCUSED:** BINEETH AGED 32 YEARS S/O THANKAPPAN, VETTAPARAMBAN HOUSE, MATTATHUR P.O., THRISSUR, PIN – 680684. BY ADVS. C.Y.VINOD KUMAR MANOJ VASU C.DEEPA SAMEENA H. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) SMT.T V NEEMA, SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27.02.2023, THE COURT ON 09.03.2023 DELIVERED THE FOLLOWING: B.A.No.587/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.587 of 2023_ _================================ Dated this the 9th day of March, 2023_ ## _**O R D E R**_ 3rd accused in Crime No.1092/2021 of Tirur Police Station, Malappuram now pending as S.C.No.344/2022 before the Special Court under the Narcotic Drugs and Psychotropic Substances Act, Manjeri, seeks 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 relevant records placed by the learned Public Prosecutor. 3. The prosecution allegations is that at about 11.50 hours on 03.09.2021the petitioner was found carrying 230 kg of Ganja in contravention to the provisions of the Narcotic Drugs and B.A.No.587/2023 3 Psychotropics Substances Act (`NDPS Act' for short hereinafter) and he was nabbed while he was transporting the said contraband in a lorry bearing Registration No.KA 19AC 5881 when the above lorry reached Chamravattam Tirur public road. Accordingly, accused 1 to 3 were nabbed on the primary finding that they have transported the contraband coming to the tune of commercial quantity. 4. The learned counsel for the petitioner points out that the petitioner is innocent and the allegations are false. According to the learned counsel for the petitioner, the 3rd accused was arrested on 03.09.2021 and final report was already filed in this matter. Since the petitioner is the sole bread winner of the family, his further incarceration would be fatal and, therefore, he may be released on bail. 5. Whereas the learned Public Prosecutor strongly opposed bail on the submission that accused 1 to 3 including the petitioner B.A.No.587/2023 4 were nabbed by the police while they were jointly transporting 230 kg. of Ganja. Since the complicity of the petitioner is on par with accused 1 and 2, the petitioner cannot be released on bail and grant of bail is subject to the satisfaction covered under Section 37 of the NDPS Act. 6. On perusal of the prosecution records, accused 1 to 3 were nabbed by the police red-handedly along with 230 kg of Ganja. Therefore, the offences alleged to have been committed by the accused herein are well made out, _prima facie_ , and quantity of contraband is commercial. Therefore, grant of bail shall be subject to the restrictions contained in Section 37 of the NDPS Act. 7. In so far as, in cases, where the prosecution alleges possession of commercial quantity of contraband, the rider 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.587/2023 5 _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 while on B.A.No.587/2023 6 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.587/2023 7 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 B.A.No.587/2023 8 624: 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 [2023 Cri.LJ 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 B.A.No.587/2023 9 under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 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, this application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_