Deepak K.C v. State of Kerala (B.A. No. 2824 of 2023)

B.A.No.2824/2023 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945 BAIL APPL. NO. 2824 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT Bail Appl. 1/2023 OF HIGH COURT ``` ## **`OF KERALA`** ``` CRIME NO.29/2022 OF MANJERI EXCISE RANGE OFFICE, MALAPPURAM PETITIONER/ACCUSED NO.1: ``` ``` DEEPAK K.C AGED 22 YEARS ELLANGAL, KARUTHA PARAMBA, NELLIKKAPARAMBA P.O., KAKKAD VILLAGE, KOZHIKODE, PIN - 673602 BY ADVS. P.A.MOHAMMED SHAH RENOY VINCENT HELEN P.A. SHAHIR SHOWKATH ALI ``` ## **`RESPONDENT/PROSECUTION:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` BY PUBLIC PROSECUTOR SRI M.P.PRASANTH ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17.08.2023, THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING: ``` B.A.No.2824/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.2824 of 2023_ _================================ Dated this the 25th day of August, 2023_ ## _**O R D E R**_ This is the second 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 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 6 p.m B.A.No.2824/2023 3 on 24.09.2022, acting on a secret information given by Sri.Anilkumar, State Excise 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.KL57W-1820 were seized and crime alleging commission of above offences was registered and the same is on investigation. 4. Earlier, the bail application filed by the petitioner was dismissed observing as under in paragraphs 4 to 13: _“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_ B.A.No.2824/2023 4 _also pointed out the custody of the petitioner from 10.11.2022 and 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 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),--_ B.A.No.2824/2023 5 _(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 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 SCC798, 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_ B.A.No.2824/2023 6 _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 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 India v. Jitentra Giri._ _12. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the_ B.A.No.2824/2023 7 _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 instance of the petitioner must fail. Hence the petition stands dismissed.”_ 5. While pressing for regular bail to the petitioner for the second time, the learned counsel for the petitioner reiterated the earlier contentions and submitted that the petitioner was forced to receive the courier in which the telephone number of the petitioner is shown, even though the addressee is not the petitioner, without knowing that the same is contraband. Therefore, the petitioner is absolutely innocent. B.A.No.2824/2023 8 6. Per contra, the learned Public Prosecutor zealously opposed bail on the submission that the petitioner, who is fully aware of the fact that the contraband was in the courier wilfully accepted the same with intention to sell the same and he was nabbed while possessing the contraband. Since the rider under Section 37 of the NDPS Act would apply in this matter involving commercial quantity, this application deserves dismissal. In this matter a vital aspect is the receipt of the courier in the name of a third person by the petitioner when he was informed through the telephone number shown in the courier item. If the petitioner is a person having no knowledge about the contraband, he could very well refuse acceptance of the courier and his readiness to accept the courier in the name of a third party shows his _mens rea_ in the crime and, therefore, the contention that he is innocent, cannot be accepted. 7. In fact, nothing substantiated to consider the prayer for granting regular bail even after finding that the final report B.A.No.2824/2023 9 attributes involvement of the 1st accused in this crime. Therefore, this is not a fit case to dilute the rider under Section 37 of the NDPS Act, as already observed in the earlier bail order. In the above circumstances, the bail application stands dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.2824/2023 10 ## **`APPENDIX OF BAIL APPL. 2824/2023`** ``` PETITIONER’s ANNEXURES Annexure-ATHE TRUE COPY OF THE ORDER PASSED IN CRL.M.P.NO.1450/2022 BY THE SPECIAL JUDGE, NDPS ACT CASES, MANJERI, DATED 14.10.2022 Annexure-BTHE TRUE COPY OF THE ORDER PASSED IN B.A. NO.1/2023 DATED 09.03.2023THE TRUE COPY OF THE ORDER PASSED IN B.A. NO.1/2023 DATED 09.03.2023 ```