Dino C.S v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 11307 OF 2023 CRIME NO.51/2023 OF THE EXCISE ENFORCEMENT AND ANTI NARCORTIC SPECIAL SQUAD, THRISSUR ``` ``` AGAINST THE ORDER IN CRMC 1751/2023 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## `PETITIONER:` ``` DINO C.S, AGED 26 YEARS S/O SUBRAMANIAN C.V, CHEMBALIPURATH HOUSE, AMMADAM DESOM, VENGINISSERY VILLAGE, THRISSUR THALUK, THRISSUR DISTRICT, PIN – 680575 BY ADVS.VINAY RAMDAS K.B.ANAMIKA ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY THE EXCISE CIRCLE INSPECTOR OF EXCISE ENFORCEMENT AND ANTI NARCORTIC SPECIAL SQUAD, THRISSUR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ,ERNAKULAM, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.11307/2023 -:2:- Dated this the 21[st] day of February,2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.51/2023 of the Excise Enforcement & Anti Narcotic Special Squad, Thrissur, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). 2. The gist of the prosecution case is that, on 29.09.2023, at around 10.10 p.m., the Excise party attached to the Excise Enforcement & Anti Narcotic Special Squad, Thrissur, arrested the first accused with 0.3 grams of MDMA. During his interrogation, he conferred that the contraband article was supplied to him by two persons, namely, Sarath and Dino (the B.A.No.11307/2023 -:3:- petitioner) who were residing at Volga Tourist Home, Thrissur, in Room Nos. 302 & 304. Based on the said confession, the excise party conducted a search in the above two rooms after complying with the legal formalities. From the two rooms 56.65 grams of MDMA was also seized. The investigation has revealed that the petitioner and the other accused were inmates of the room. Thus, the accused have committed the above offences. 3. Heard Sri.Vinay Ramdas, the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the involvement of the petitioner in the crime. The Investigating Agency has violated the B.A.No.11307/2023 -:4:- mandatory procedural requirements contemplated under Section 42 of the NDPS Act. Therefore, the entire search conducted by the Investigating Agency is vitiated. At any rate, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report. It is alleged that the materials seized by the Investigating Officer and the confession made by the first accused clearly establish the complicity of the petitioner in the crime. The petitioner's custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 6. The prosecution allegation is that, while a person named Sreejith was arrested, he had confessed that the accused Nos.1 & 2 had supplied the contraband article. Based on the said information, the B.A.No.11307/2023 -:5:- Investigating Officer conducted a search in the rooms of the accused Nos.1 & 2 and seized 56.65 grams of contraband article. The defence of the petitioner is that he was not residing in the room and there is a total violation of the mandatory procedural requirements contemplated under Section 42 of the NDPS Act read with Sections 101 & 165 of the Code. Indisputably, the contraband that was seized from the hotel rooms are of a commercial quantity. 7. In **Union of India v. Md. Nawaz Khan** [2021 KHC 6503], the Hon'ble Supreme Court, after considering the earlier precedents on the point, has held thus: “28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana.” ## 8. The above view has been followed by this Court in **Abeesh v. State of Kerala** [2022:KER:50902] case in the following lines: B.A.No.11307/2023 -:6:- “8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham’s case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan’s case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act.” 9. In the light of the exposition of law in **Md.** **Nawaz Khan's** case and **Abeesh's** case, which I fully concur, I am of the firm view that the contention of the B.A.No.11307/2023 -:7:- learned counsel for the petitioner, which has been countered by the Public Prosecutor, is a matter can only be decided in trial and not at the stage of consideration of the bail application. On going through the materials placed on record, prima facie I am satisfied that there is substantial compliance of the above provision. 10. It is to be remembered that, the contraband allegedly seized from the accused is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts of the case. 11. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the NDPS Act. It is apposite to reproduce 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),— B.A.No.11307/2023 -:8:- (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 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.” ## 12. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the NDPS Act and also involving a commercial quantity shall not be released on bail unless the court is satisfied that there 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 NDPS Act is subject to provisions contained under Section 439 of B.A.No.11307/2023 -:9:- the Code and parameters referred to above and on the accused satisfying the twin conditions under Section 37 of the NDPS Act. 13. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the NDPS 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”. ## 14. **Md. Nawaz Khan** ’s case, the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the NDPS 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- B.A.No.11307/2023 -:10:- trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 15. It is also well-settled that in addition to applying the rigour under Section 37 of the NDPS Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 16. 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: “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 B.A.No.11307/2023 -:11:- 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”. 17. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and the ratio decidendi in **Md. Nawaz Khan’s** and **Abeesh's** cases, and on being prima facie satisfied of substantial compliance of Section 42 of the NDPS Act and the question whether the search and seizure were conducted in accordance with provisions of the NDPS Act is a matter of evidence, and further on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, the potential severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction, I do not find any reasonable ground to hold that the petitioner B.A.No.11307/2023 -:12:- is not guilty of the offence alleged against him and that he is not likely to commit a similar offence if he is enlarged on bail. Hence, I hold that the rigour under Section 37 of the NDPS Act applies to the facts of the case. Therefore, I am not inclined to enlarge the petitioner on bail. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/21.02.24 //True copy// P.A. To Judge