Deepak Johnson v. State of Kerala

1 BA No.1266 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1266 OF 2024 ``` ``` CRIME NO.19/2023 OF Excise Enforcement and Anti Narcotic ``` ``` Special Squad, Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` DEEPAK JOHNSON, AGED 34 YEARS S/O JOHNSON ANTONY, RESIDING AT TC 78/1487, VALIYATHOPE VALLAKADAVU P.O,THIRUVANANTHAPURAM, PIN - 695008 ``` ``` BY ADVS. ``` ``` MITHUN P. AFSAL KHAN H. MERIN THOMAS ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1266 of 2024 ## **C.S.DIAS,J** ## **====================== BA No.1266 of 2024** **----------------------------------Dated this the 7[th] day of March, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fifth accused in Crime No.19/2023 of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, registered against the accused (eight in number), for allegedly committing the offences punishable under Sections 8(c), 22(c), 20(b) (ii) (c), 25 and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioner was arrested on 8.9.2023. 2. The crux of the prosecution case is that: on 9.7.2023 at around 19.00 hours, the accused, in furtherance of a 3 BA No.1266 of 2024 conspiracy that was hatched among them, were found in possession of 155.480 kg of ganja and 70.71 grams of methamphetamine, which was kept for the purpose of sale in a car bearing registration No.KL 01/CY 2624 and in the house owned by one Omanakuttan near Nehru Junction, Pallithura in contravention of the provisions of the Act. In the investigation, it is revealed that the fifth accused is also involved in the crime and he was a person who had taken the house for rent and received financial assistance. Thus, the accused have committed the above offences. 3. Heard; Sri.Mithun Pavanan, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. A reading of Annexure A2 final 4 BA No.1266 of 2024 report/complainant would substantiate that there is no incriminating materials against the petitioner other than for the confessions made by the accused, which are inadmissible in evidence, and certain financial transactions between the petitioner and accused 1 and 3. The petitioner was afflicted with chicken pox and was indisposed at the time of the incident. Therefore, by no stretch of imagination, can the petitioner be said to be involved in the crime. The investigation in the case is complete and final report has been laid. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She submitted that, the investigation has revealed that the petitioner was residing with accused 1 to 3 in the rented premises, which was taken on lease by the petitioner. There are numerous telephonic conversations and financial transactions between the petitioner and other accused. The 5 BA No.1266 of 2024 investigation has unveiled that the petitioner had gone with the other accused to the State of Karnataka and procured the contraband from there. The landlord of the house, which was taken on lease by the petitioner, who is witness No.12 has identified the petitioner and the other accused as the persons who were living in her house. All these materials substantiate the active involvement of the petitioner in the crime. Since the contraband is of a commercial quantity, the rigour under Section 37 of the Act applies. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused 1 to 8 in furtherance of the conspiracy that was hatched among themselves had procured 155.480 Kg of ganja and 70.71 grams of methamphetamine from the State of Karnataka and had brought it to the State of Kerala for the purpose of sale. The petitioner was residing along with accused 1 to 3 in the 6 BA No.1266 of 2024 same premises. There were telephonic conversations and financial transactions between the petitioner and other accused. Further, the petitioner had gone with the other accused to the State of Karnataka and procured the contraband from there. 7. On the contrary, the learned counsel for the petitioner submitted that other than for the financial transaction, there is nothing else to link the petitioner with the crime. Moreover, the petitioner was indisposed during the dates on which the contraband was allegedly procured from the State of Karnataka. 8. On an appreciation of the materials, it is seen that the contraband involved in the case is of a commercial quantity. Therefore, Sec.37 of the Act applies to the facts of the case. 7 BA No.1266 of 2024 9. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows: “37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” ## 10. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there 8 BA No.1266 of 2024 are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 11. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression 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”. 9 BA No.1266 of 2024 12. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 13. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 14. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: 10 BA No.1266 of 2024 “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 15. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, the law referred to in the afore cited decisions, and on comprehending the nature, seriousness, gravity, and the accusation levelled against the petitioner, that prima facie there are incriminating materials to substantiate the active involvement of the petitioner in the crime, that the contraband is of a commercial quantity and that since the rigour under Section 37 of the Act applies to the facts and 11 BA No.1266 of 2024 circumstances of the case, I do not find any reasonable ground to hold that the petitioner has not committed the offence alleged against him and that the petitioner is likely to commit similar offence. The application is meritless and is only to be rejected. Resultantly, the application is dismissed. **sd/-** Sks/ 7.3.2024 **C.S.DIAS, JUDGE**