Ebin v. State of Kerala

1 Bail Application No. 3082 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 BAIL APPL. NO. 3082 OF 2024 ``` ``` CRIME NO.16/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, THIRUVANANTHAPURAM, Thiruvananthapuram PETITIONER/S: ``` ``` EBIN, AGED 27 YEARS S/O EUGINE, JUDGE COTTAGE, VANDAZHA NINNA VEEDU, PUTHIYATHURA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695526 ``` ``` BY ADV LATHEESH SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2EXCISE CIRCLE INSPECTOR, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, NANDANCODE, THIRUVANANTHAPURAM, PIN - 695003 ``` ## **`OTHER PRESENT:`** ## **`Sr PP Smt Seetha S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 3082 of 2024 ## **C.S.DIAS,J** **====================== Bail Application No. 3082 of 2024 ----------------------------------Dated this the 12[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.16/2023 of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act. The petitioner was arrested on 9.6.2023. 2 **.** The essence of the prosecution case is that: on 9.6.2023, in the search conducted by the Investigating Officer on the first accused, 89.06 gms of MDMA was recovered from 3 Bail Application No. 3082 of 2024 the pocket of the trousers. During his interrogation, he confessed that some more contraband was stored in his car. Accordingly in the subsequent search that was conducted in the car, 161.88 gms of MDMA was seized. Thus, a total quantity of 250.94 gms of MDMA was seized from the first accused. During the further interrogation of the first accused, it is revealed that he had given 5.58 gms of MDMA to the second accused. Accordingly, the second accused was also arrested. Thus, the accused have committed the above offences. 3. Heard; Sri.Latheesh Sebastian, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the case. The petitioner has been implicated in the crime solely on the basis 4 Bail Application No. 3082 of 2024 of the confession statement given by the first accused, which is inadmissible in law in view of the decision of the Hon’ble Supreme Court in **Tofan Singh v. State of Tamil Nadu** [2020 (2) KLD 781]. The petitioner has been in judicial custody for the last one year, the investigation in the case is practically complete and final report has been laid. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that there are incriminating materials to substantiate the petitioner’s involvement in the crime. The car in which the contraband was recovered was taken on rent by the second accused. Moreover, the contraband involved in the case is of a commercial quantity and the petitioner is an inveterate offender, including for committing an offence under the NDPS Act. In fact, the petitioner is in 5 Bail Application No. 3082 of 2024 judicial custody in Crime No.15/2023 of the very same Police Station for allegedly committing the offence punishable under Sec.22(b) of the NDPS Act. As the contraband involved in the case is of a commercial quantity, the rigour under Sec.37 of the Act applies. As the petitioner has criminal antecedents, he does not qualify the second limb of Sec.37 of the Act. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it can be seen that the contraband involved in the case is 250.94 gms of MDMA, which is of a commercial quantity. The specific overt act attributed against the petitioner is that he had purchased 5.58 gms of MDMA from the first accused. In the search that was conducted in the car taken on rent by the petitioner, 161.88 gms of MDMA was seized. Indisputably, the petitioner is also an accused in crime No.15/2023 of the very same Police 6 Bail Application No. 3082 of 2024 Station for allegedly committing an offence under Sec.22(b) of the NDPS Act. The petitioner is in judicial custody in the said crime also. 7. 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. ## 8. 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 7 Bail Application No. 3082 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. 9. 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”. ## 10. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after 8 Bail Application No. 3082 of 2024 ## 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” 11. 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. 12. 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 released on 9 Bail Application No. 3082 of 2024 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”. 13. On a comprehensive consideration of the factual matrix, the rival submissions made across the Bar, the materials placed on record, especially on comprehending the seriousness, gravity, and nature of the offences alleged against petitioner, that the car from which the contraband was seized was taken on rent by the petitioner, the contraband involved in the case is of commercial quantity, that the petitioner is a person with criminal antecedents and, therefore, does not qualify the second limb of Sec.37 of the Act in view of the law laid down in **Dheeraj Kumar Shukla vs. The State of Uttar Pradesh** (2023 SCC Online SC 918)] and on prima facie finding that there are incriminating materials showing the petitioner’s involvement in the crime, I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of 10 Bail Application No. 3082 of 2024 the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out valid grounds to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be dismissed. Resultantly, the application is dismissed. sd/- sks/12.6.2024 **C.S.DIAS,JUDGE**