Farhan.V.S. vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 BAIL APPL. NO. 1351 OF 2023** **CRMP 1642/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST),** ## **MANJERI** **CRIME NO: 777/2022 OF KONDOTTY POLICE STATION** ## **PETITIONER/ACCUSED NO.5:** **FARHAN.V.S AGED 22 YEARS S/O SAJID.V.A, VALIYAKATH HOUSE, SDPY ROAD, NAMBIAPURAM, PALLURUTHY.P.O. KOCHI, ERNAKULAM DISTRICT, PIN - 682006** **BY ADVS. JASMINE LIGY JEFRIN JOSE S.SURESH BABU** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** ## **OTHER PRESENT:** **T V NEEMA (SR PP)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1351 OF 2023** 2 ## **A. BADHARUDEEN, J.** **-------------------------------------------------** **B.A.No.1351 of 2023** **-------------------------------------------------** Dated this the 22[nd] day of February, 2023 ## **O R D E R** This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the petitioner/fifth accused in Crime No.77 of 2022 of Kondotty Police Station, when the accused alleged to have committed offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. I have perused the Case Diary materials and report of the investigating officer produced by the learned Public Prosecutor. 4. The prosecution allegation is that, at about 00.00 hours on 28.09.2022, the Sub Inspector of Police Kondotty, found the accused Nos.1 to 5 were possessed **BAIL APPL. NO. 1351 OF 2023** 3 92.3 grams of MDMA in a car bearing registration No.KL71-H-7859 at Mongam Hill top with the aid of accused Nos.6 to 12 and as part of conspiracy hatched between the accused. Accordingly, crime was registered alleging commission of offences punishable under Sections 22(c) and 29 of the NDPS Act. 5. The learned counsel for the petitioner would submit that the prosecution allegations are absolutely false and the 5[th] accused was not at the place of occurrence and he was at Vandoor, 40 kms away from the place of occurrence, at the time of occurrence. While pressing for grant of regular bail to the petitioner, who alleged to have committed offence punishable under Sections 22(c) and 29 of the NDPS Act involving commercial quantity, the learned counsel for the petitioner highlighted his custody from 27.09.2022 onwards. 6. Whereas, the learned Public Prosecutor **BAIL APPL. NO. 1351 OF 2023** 4 submitted that 92.3 grams of MDMA was allegedly possessed by the accused and the contraband is commercial quantity. Therefore the rider under Section 37 of NDPS Act would apply and therefore the petitioner cannot be released on bail. 7. On perusal of the available prosecution records, the same would show that the contraband seized from the hands of the accused Nos. 1 to 5. 8. That apart, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would 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_ **BAIL APPL. NO. 1351 OF 2023** 5 _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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail._ 9. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person **BAIL APPL. NO. 1351 OF 2023** 6 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. 10. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 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. 11. It was further held that the Court while **BAIL APPL. NO. 1351 OF 2023** 7 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. 12. 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 **BAIL APPL. NO. 1351 OF 2023** 8 302], **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 one reported in **Union of India v. Jitendra Giri** [2023 Crl.L.J 799]. 13. 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. **BAIL APPL. NO. 1351 OF 2023** 9 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. 14. Thus, this Court while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 15. Going by the prosecution allegations, this Court **BAIL APPL. NO. 1351 OF 2023** 10 could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- **A. BADHARUDEEN, JUDGE** AS **BAIL APPL. NO. 1351 OF 2023** 11 ## **APPENDIX OF BAIL APPL. 1351/2023** ## **PETITIONER'S ANNEXURES:** |**ANNEXURE**|**1**|**THE TRUE COPY OF FIR IN CRIME NO:**| |---|---|---| |||**777/2022 OF KONDOTTY POLICE STATION**| |||**MALAPPURAM DISTRICT**| |**ANNEXURE**|**2**|**TRUE COPY OF ORDER DATED 13-10-2022**| |||**PASSED BY HONOURABLE SPECIAL COURT-(FOR**| |||**THE TRIAL OF OFFENCES UNDER SC/ST (POA)**| |||**ACT CASES AND NDPS) MANJERI IN C.M.P.**| |||**1439/2022**| |**ANNEXURE**|**3**|**TRUE COPY OF ORDER DATED 09-11-2022**| |||**PASSED BY HONOURABLE SPECIAL COURT-(FOR**| |||**THE TRIAL OF OFFENCES UNDER SC/ST (POA)**| |||**ACT CASES AND NDPS) MANJERI IN C.M.P.**| |||**1643/2022**| |**ANNEXURE**|**4**|**TRUE COPY OF ORDER DATED 11-01-2023PASSED**| |||**BY HONOURABLE SPECIAL COURT-(FOR THE**| |||**TRIAL OF OFFENCES UNDER SC/ST (POA) ACT**| |||**CASES AND NDPS) MANJERI IN C.M.P. 23/2023**| |**ANNEXURE**|**5**|**TRUE COPY OF ORDER DATED 04-02-2022**| |||**PASSED BY HONOURABLE SPECIAL COURT-(FOR**| |||**THE TRIAL OF OFFENCES UNDER SC/ST (POA)**| |||**ACT CASES AND NDPS) MANJERI IN C.M.P.**| |||**209/2023**| |**ANNEXURE**|**6**|**TRUE COPY OF THE SEIZURE MAHAZAR**| |**ANNEXURE**|**7**|**CERTIFIED COPY OF ORDER DATED 17-11-2022**| |||**PASSED BY HONOURABLE SPECIAL COURT-(FOR**| |||**THE TRIAL OF OFFENCES UNDER SC/ST (POA)**| |||**ACT CASES AND NDPS) MANJERI IN C.M.P.**| **BAIL APPL. NO. 1351 OF 2023** 12 ## **1642/2022** **ANNEXURE 8** **THE COPY OF MEDICAL RECORDS OF PETITIONER'S FATHER**