Fadil Nizar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945** **BAIL APPL. NO. 11500 OF 2023** **CRIME NO.391/2022 OF Kasaba Police Station, Palakkad,** **Palakkad** **AGAINST THE ORDER/JUDGMENT DATED 07.12.2023 IN CRMC NO.5793 OF 2023 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD PETITIONER/S:** **FADIL NIZAR, AGED 26 YEARS S/O. MUHAMMED NIZAR,AYISHA MANZIL, NEAR FATHIMA MATHA CHURCH,FATHIMA PURAM POST,KOTTAYAM, PIN - 686102** **BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.S.DIAS,J** **---------------------------------------------Bail Application No.11500 of 2023 ---------------------------------------------Dated this the 11[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 5[th] accused in Crime No.391/2022 of the Kasaba Police Station, Palakkad, registered against the accused for allegedly committing the offences punishable under Secs.20(b)(ii) (C), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short, 'Act'). The petitioner was arrested on 02.11.2023. 2. The essence of the prosecution case is that: the accused 1 to 5 had conspired and proceeded in two vehicles bearing numbers KL-05-AV-6663 and KL-05-AV2235 to Vishakhapattanam and brought ganja from the place named Arakkuvali. They transported the contraband in vehicle bearing No.KL-05-AV-6663. BAIL APPL. NO. 11500 OF 2023 3 However, the said vehicle met with an accident on 02.06.2022 at Salem in Tamilnadu. Then, the accused shifted the contraband to vehicle No.KL-05-AV-2235 and the accused 1 and 2 traveled with the contraband in the said vehicle. They had also shifted one bag of contraband to another vehicle bearing No.KL-05-AA-1551. While the vehicle was passing through the Walayar toll plaza, Palakkad, Sri. Subin, the Excise Inspector of the Excise Enforcement and Anti Narcotic Special Squad, Palakkad intercepted the vehicle No.KL-05-AV-2235 and searched the vehicle. But, the accused drove away the vehicle at high speed and the Excise Inspector fell to the ground. Nonetheless, the Excise Officials intercepted the second vehicle bearing No.KL-05-AA-1551 in which the petitioner and Jacob Philip were travelling and seized 11.6 kilograms of ganja from the vehicle. They BAIL APPL. NO. 11500 OF 2023 4 accordingly registered Crime No.28/2022 of the Palakkad Excise Range. The Walayar Police also registered Crime No.238/2022 for obstructing the Excise Inspector from discharging his official functions and causing theft of his belongings. Later, in the investigation, it was unveiled that the car bearing No.KL05-AV-2235 which barged through the barricade of the toll plaza had abandoned 129.935 kilograms of ganja at a place named Kaithakuzhi, Elapully Panchayath. Thus, the accused have committed the above offence. 3. Heard; Sri.K.K.Dheerendrakrishnan, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely BAIL APPL. NO. 11500 OF 2023 5 implicated in the crime. The petitioner was implicated as the 2[nd] accused in Crime No.28/2022 of the very same Excise Range Office for allegedly being in possession of 11.6 kilograms of ganja. He was arrested on 03.06.2022 in the said crime and was released on bail by this Court on 04.08.2022 in B.A.No.5931/2022. It is after 18 months that the petitioner has been implicated in the present crime and he has been arrested on 02.11.2023. The inordinate delay on the part of the prosecution by itself substantiates the falsity in the accusation. The investigation in the case is complete and the final report has been laid. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the BAIL APPL. NO. 11500 OF 2023 6 petitioner has criminal antecedents. In addition to the above two crimes the petitioner is also an accused in Crime No. 27/2019 of the Kunnathunad Excise Circle Office for allegedly committing the offence punishable under Sections 20(b)(ii)(B) and 29 of the Act. In view of the antecedents of the petitioner itself, the application is only to be dismissed in view of the rigour under Section 37 of the Act. The Investigating Officer has also filed bail objection report contending that accused 1 to 3 had brought the contraband article from the State of Andhra Pradesh to the State of Kerala. At Walayar, Palakkad one sack of ganja was transferred to the vehicle in which the petitioner was traveling. Subsequently, the Excise Squad intercepted the vehicle in which the petitioner and Jacob Philip were traveling and seized the contraband. The investigation has unveiled that the petitioner had BAIL APPL. NO. 11500 OF 2023 7 frequent telephone conversations and financial transactions with the third accused to purchase the contraband. The petitioner has previously smuggled and sold narcotic drugs in the State of Kerala. There are incriminating materials to establish that the petitioner had sent money to the bank account of the 3[rd] accused. In addition to the present two crimes, the petitioner is an accused in Crime No.27/2019 of the Kunnathunad Excise Range, for committing an ofence under the Act. Since the contraband involved is of a commercial quantity, the application is hit by the rigour under Section 37 of the Act. Therefore, the application is only to be dismissed. 6. The prosecution allegation in the present crime is that the petitioner had conspired with accused 1 to 4 in the transportation and sale of 124.9350 kilograms of ganja from the State of Andhra Pradesh and brought it to BAIL APPL. NO. 11500 OF 2023 8 the State of Kerala and attempted to sell the same. In addition to conspiring in the present crime, the petitioner and Jacob Philip had taken 11.6 kilograms of ganja to sell it in Ernakulam District. However, on the way their vehicle was intercepted by the Excise Squad, the contraband was seized and Crime No.28/2022 was registered against them. By order in B.A.No.5931/2022, this Court enlarged the petitioner and Jacob Philip on bail on 04.08.2022. Subsequently in the investigation that was conducted in the present crime, namely, Crime No.2391/2022, it was unveiled that the petitioner is also involved in transporting 124.935 kilograms of ganja from the State of Andhra Pradesh. 7. The principle contention of the learned counsel for the petitioner is that the petitioner has been falsely implicated in the present crime. The present crime is an BAIL APPL. NO. 11500 OF 2023 9 offshoot of Crime No.28/2022. It is after the petitioner was released on bail by this Court in Crime No.28/2022 that he has been falsely implicated in the present crime on the assertion that he conspired with accused 1 to 4 in the present crime. This by itself shows the falsity in the accusations leveled against the petitioner. 8. Indisputably the contraband that is involved in the present crime is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. 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 BAIL APPL. NO. 11500 OF 2023 10 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 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 BAIL APPL. NO. 11500 OF 2023 11 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”. ## 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- BAIL APPL. NO. 11500 OF 2023 12 trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 10. 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. 13. Even assuming that the petitioner has been falsely implicated in the present crime and, therefore, he satisfies the first limb of Section 37 of the Act, indisputably, the petitioner is an accused in an earlier crime namely Crime No.27/2019 of the Kunnathunad Excise Range for committing a similar offence. 14. It is well settled that two limbs of Section 37 of the Act have to be read conjunctively. 15. In **Dheeraj Kumar Shukla v. The State of** **Uttar Pradesh** [2023 SCC OnLine SC 918], the Hon’ble Supreme Court has held that the second limb under Section 37 of the NDPS Act can be diluted if the accused has no criminal antecedents. BAIL APPL. NO. 11500 OF 2023 13 16. As the petitioner is an accused in Crime No.27/2019, the petitioner fails to satisfy the second limb of Section 37 of the Act. Therefore, even without going into the merits of the first limb, I am of the view that the petitioner is not entitled to be released on bail. On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record and on comprehending the nature, seriousness and gravity of the accusations leveled against the petitioner, that the contraband is of a commercial quantity and that the petitioner has criminal antecedents, I do not find any reasonable ground to hold that the petitioner has not committed the offence alleged against him and he is not likely to commit the offence of a similar nature, if he is enlarged on bail. Therefore, I hold that the rigour under Section 37 of the Act applies BAIL APPL. NO. 11500 OF 2023 14 to the facts and circumstances of the case. The application is meritless and is only to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/11.03.24 BAIL APPL. NO. 11500 OF 2023 15 ## **APPENDIX OF BAIL APPL. 11500/2023** ## **PETITIONER ANNEXURES** **Annexure 1 A TRUE COPY OF THE RELEVANT STATEMENT OF ACCOUNTS OF THE PETITIONER Annexure -II CERTIFIED COPY OF THE ORDER DATED 15.09.2023 IN CRL MC NO. 5793/2023 PASSED BY THE SESSIONS JUDGE, PALAKKAD**