Dany Joshy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 BAIL APPL. NO. 819 OF 2023** **AGAINST THE ORDER/JUDGMENTCRMP 4401/2022 OF ADDITIONAL DISTRICT COURT, THRISSUR** **CRIME NO.1112/2022 OF KUNNAMKULAM POLICE STATION, THRISSUR PETITIONER/ACCUSED NO.3:** DANY JOSHY AGED 25 YEARS S/O JOSHY, CHITTILAPPILLY HOUSE, ELAVALLY VILLAGE, CHITTATUKARA DESOM, PAVARATTY, THRISSUR, PIN – 680511 BY ADVS. V.V.JOY RAMAKRISHNAN M.N. ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY SMT.T V NEEMA, SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02.03.2023, THE COURT ON 10.03.2023 DELIVERED THE FOLLOWING: B.A.No.819/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================** B.A.No.819 of 2023 ================================ Dated this the 10th day of March, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the 3rd accused in Crime No.1112/2022 of Kunnamkulam Police Station, Thrissur. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents. 3. The prosecution allegation is that at about 11.30 p.m on 05.09.2022, accused 1 to 3 were found in possession of 0.44 grams of LSD stamp, 23.65 grams of Netrosepham tablets and 23.95 grams of ganja while they were carrying the same in a car bearing Registration No.KL 55 W 993. 4. On this premise, the prosecution alleges commission of offences punishable under Sections 22(c), 20(b)(II)(a) and Section 29 of B.A.No.819/2023 3 the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act’ for short hereinafter). 5. While canvassing regular bail to the 3rd accused, who has been in custody from 06.09.2022 onwards, the learned counsel for the petitioner submitted that the petitioner is innocent and nothing recovered from the conscious possession of the 3rd accused and the recovery was from the 1st accused. Therefore, his complicity shall be read in isolation in the matter of possession of contraband to satisfy the twin conditions stipulated in Section 37 of the NDPS Act and he may be released on bail. 6. Opposing this contention, the learned Public Prosecutor would submit that on doubting the possession of noxious substances, when the Investigating Officer questioned accused 1 to 3, they had given inconsistent statements and thereafter the contraband was seized from the car, when the accused jointly transported the contraband and, therefore, the complicity of accused 1 to 3 cannot be segregated at all. The learned Public Prosecutor also pointed out that it is difficult to B.A.No.819/2023 4 satisfy the twin conditions stipulated under Section 37 of the NDPS Act in this particular case to grant bail. 7. On perusal of the case diary it appears that the submission made by the learned Public Prosecutor appears to be convincing and the contraband coming to commercial quantity was recovered while the accused were jointly transporting the same. Therefore, complicity of the petitioner cannot be read in isolation and the . same is on par with the other accused, _prima facie_ 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--_ B.A.No.819/2023 5 _(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 subsection (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._ 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 B.A.No.819/2023 6 ‘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. 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 B.A.No.819/2023 7 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 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], B.A.No.819/2023 8 . _**Union of India v. Jitentra Giri**_ 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 innocent and he will not commit any offence while on bail. B.A.No.819/2023 9 Therefore, application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_