Deepak K.C 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. 1 OF 2023 CRIME NO.29/2022 OF MANJERI EXCISE RANGE OFFICE, ``` ## **`MALAPPURAM`** ## **`P ETITIONER/ACCUSED:`** ``` DEEPAK K.C AGED 22 YEARS S/O JAYARAJAN, ELLANGAL, KARUTHA PARAMBA, NELLIKKAPPARAMBA PO,KAKKAD VILLAGE KOZHIKODE DISTRICT, PIN - 673602 BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP NAVJYOTH S. ANJU R S. ANTONY THOMAS ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV T V NEEMA SR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No. 1 of 2023 2 ## **A.BADHARUDEEN, J.** ## **-----------------------------------------------** **BAIL APPL. No.1 of 2023 ----------------------------------------------Dated this the 9[th] day of March, 2023.** ## **O R D E R** This is an application for regular bail filed by the first accused in Crime 29/2022 of Manjeri Excise Range Office, Malappuram. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the report of the Investigating Officer and the relevant documents available. 3. In this matter prosecution alleges commission of offences punishable under Sections 22(c), 8(c) r/w 29 of the the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience). Prosecution case that could be read out from the report of the Investigating Officer is that at 6pm on 24.09.2022, acting on a secret information given by Sri.Anilkumar, State Excise BA No. 1 of 2023 3 Commissioner to the effect that the accused herein was possessing contraband in front of Professional Courier Service, Sabeena Complex, Areacode P.O., the Excise Circle Inspector and party searched the accused who were present at the said place and on search 08.411 gm (730 nos.) of LSD Stamp was recovered from the accused. Accordingly, the accused/petitioner and scooter bearing No.KL57-W-1820 were seized and crime alleging commission of above offences was registered and the same is on investigation. 4. While canvassing regular bail for the petitioner, the learned counsel for the petitioner would submit that the petitioner is innocent. He also pointed out that the petitioner was called before the courier service noticing his mobile number in the courier. Though, initially the petitioner informed the courier service that he had no connection with the courier, the courier service agency insisted the petitioner to come and verify the courier. At this juncture, he was arrested and the petitioner is absolutely innocent. The learned counsel also pointed out the custody of the petitioner from 10.11.2022 and BA No. 1 of 2023 4 the progress of investigation as reasons to grant regular bail. 5. Whereas the learned Public Prosecutor would submit that the contraband was recovered from the possession of the accused while they were carrying the same on a scooter, in front of the Professional Courier Service near Sabeena Complex, Areacode P.O. Accordingly, no contraband was seized from the courier service as alleged. The learned Public Prosecutor also submitted that the petitioner herein and other accused transported MDMA and they were nabbed red handedly and in such a case, the argument advanced by the learned counsel for the petitioner is an absolute improbability. The learned Public Prosecutor highlighted the rigor under Section 37 of the NDPS Act in the matter of grant of bail in this case involving commercial quantity of contraband. 6. On perusal of the report of the Investigating Officer, contraband was seized from the conscious possession of the petitioner and other accused while they were attempting to transport the same on scooter bearing No.KL57-W-1820. Thus, the argument at the instance of the learned counsel for the BA No. 1 of 2023 5 petitioner that the petitioner was forced to be at the courier service for the purpose of verifying the courier bearing his mobile number and consequently he was trapped in this crime, cannot be discernible from the prosecution records. Whereas, the red handed recovery while possessing and transporting contraband could be gathered prima facie from the report of the Investigating Officer. 7. In this case, the quantity of contraband is commercial and the same is 8.411 gm MDMA. Therefore the rigor of Section 37 of the NDPS Act would squarely apply. Section 37 of the NDPS Act provides as under: “37. Offences to be cognizable and nonbailable.-- - (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-- BA No. 1 of 2023 6 (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 bail. 9. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC BA No. 1 of 2023 7 798, **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 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 BA No. 1 of 2023 8 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 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** BA No. 1 of 2023 9 ## **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 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 BA No. 1 of 2023 10 instance of the petitioner must fail. Hence the petition stands dismissed. **Sd/-** **A.BADHARUDEEN, JUDGE.** Mn BA No. 1 of 2023 11 ## **`APPENDIX OF BAIL APPL. 1/2023`** ``` PETITIONER ANNEXURES Annexure1 ``` ``` ORDER DATED 14.10.2022 IN CRL.MP 1450/2022 ON THE FILE OF SPECIAL JUDGE NDPS ACT ,MANJERI ```