Debati Majhi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 BAIL APPL. NO. 1119 OF 2023** **AGAINST THE ORDER IN CRMC 4928/2022 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD** **CRIME NO.3/2022 OF RAILWAY POLICE STATION, PALAKKAD PETITIONER/ACCUSED NO.6:** DEBATI MAJHI AGED 42 YEARS D/O.MADURA MALIK, GUNJIMA, MADURA, ADAVA, GAJAPATHI, ODISHA, PIN – 761217. BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. BY SENIOR PUBLIC PROSECUTOR SMT. T.V.NEEMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.02.2023, THE COURT ON 24.02.2023 DELIVERED THE FOLLOWING: B.A.No.1119/2023 2 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.1119 of 2023_ ================================ _Dated this the 24[th] day of February, 2023_ ## _**O R D E R**_ 6th accused in Crime No.3/2022 of Railway Police Station, Shornur, Palakkad, seeks 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 as well as the learned Public Prosecutor. Perused the case diary as such placed by the learned Public Prosecutor. 3. The prosecution allegation is that at 12.00 hours on 10.02.2022, when train No.22642 was at platform No.3 of Palakkad Railway Station, the accused were found in possession of 46.686 Kg. of Ganja against the prohibition contained in the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act' for short hereinafter) and accordingly they were nabbed red- B.A.No.1119/2023 3 handedly. Thereafter, crime alleging commission of offences punishable under Sections 22(b)(ii)(C) and 29 of the NDPS Act was registered and the same is on investigation. 4. While pursuing regular bail to the petitioner, who is the 6th accused in the above crime, the learned counsel for the petitioner pointed out the custody of the petitioner from 10.02.2022. It is submitted further that the daughter of the petitioner is a person with disability and he has placed reliance on Annexure-1, to establish the same. 5. Whereas the learned Public Prosecutor submitted that the complicity of the petitioner is on par with the other accused and in a case involving commercial quantity of contraband, this Court cannot grant bail without diluting the rider under Section 37 of the NDPS Act. The learned Public Prosecutor also submitted that since charge sheet also has been filed and the matter is pending in Sessions Court, Palakkad, trial can be expedited keeping the custody of the petitioner. B.A.No.1119/2023 4 6. In this matter, the contraband seized from the custody of the accused, including the petitioner, is a commercial quantity. In such cases, merely because of the fact that the petitioner's daughter is disabled, the rider under Section 37 of the NDPS Act, cannot be diluted. 7. It is pertinent to note that when 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 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_ B.A.No.1119/2023 5 _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._ 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 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 B.A.No.1119/2023 6 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 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**_ B.A.No.1119/2023 7 _**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 [2023 CriLJ 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 B.A.No.1119/2023 8 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. 13. On evaluation of the prosecution materials on par with the arguments tendered by the respective counsel for the petitioners and the learned DSGI, this Court cannot satisfy that there are reasonable grounds for believing that the petitioners are innocent and they will not commit any offence while on bail. Therefore applications for regular bail at the instance of the petitioners must fail. B.A.No.1119/2023 9 Hence the petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.1119/2023 10 ## **APPENDIX OF BAIL APPL. 1119/2023** PETITIONER'S ANNEXURES Annexure1 TRUE COPY OF THE UNIQUE DISABILITY ID OF JANANI MAJHI. Annexure2 TRUE COPY OF THE ORDER DATED 24.01.2023 IN CRL.M.C.NO.4928/2022 BEFORE THE COURT OF ADDITIONAL SESSIONS JUDGE-III, PALAKKAD.