FASALU v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940 Bail Appl..No. 4910 of 2018** **CRIME NO. 812/2017 OF KASABA POLICE STATION , KOZHIKODE** ## **PETITIONER(S)/ACCUSED** **FASALU, AGED 30 YEARS, S/O.ABDURAHMAN, FATHIMAS, MULLA VEETTIL HOUSE, THIRUVANNUR (PO), KOZHIKODE DISTRICT.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.VIPIN NARAYAN SMT.MITHA SUDHINDRAN SRI.C.JAYAKIRAN SMT.POOJA PANKAJ** ## **RESPONDENT(S)/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RP** ## **RAJA VIJAYARAGHAVAN V, J ===================== B.A No.4910 of 2018** **===================== Dated this the 2[nd] day of August, 2018** ## **ORDER** This application is filed under §439 of the Cr.P.C. 2. The applicant herein is the accused in Crime No.812 of 2017 of the Kasaba Police Station, registered under §20(b)(ii)(A), 21(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On 23.12.2017, based on secret information, the applicant was intercepted and a search was conducted after complying with all statutory formalities. From a bag found in the possession of the applicant, 29.5 gms. of Hashish, 15.5 gms. of Cocaine and 54 LSD stamps weighing 1 gm. were detected. The contraband articles were sampled and sealed and later the Crime was registered after arresting the applicant. 4. The learned counsel appearing for the applicant submitted that the applicant has been undergoing incarceration B.A No.4910 of 2018 2 from 23.12.2017 and the final report has been laid. The earlier application filed by the applicant was dismissed by this Court by Annexure-A order. Bail was denied by this Court holding that the applicant was possessing LSD which falls within the description of commercial quantity and in view of Section 37 of the Act, the applicant is not entitled to be released on bail unless the twin conditions as mandated therein are satisfied. It is submitted by the learned counsel that the there are no materials to conclude that 1 gm. of LSD was seized from his possession. It is submitted that 54 stamps of LSD would never weigh 1 gm. and the edifice of the prosecution case would be shattered. The contraband was weighed with an uncalibrated equipment sourced from a private jeweller and Annexure-B certificate issued from the Chemical Examiner's Lab would not support the case of the prosecution, submits the learned counsel. 5. The learned Public Prosecutor submitted that a deadly cocktail of drugs was seized from the possession of the applicant and the seizure was effected after complying with all statutory formalities. It is submitted that trial has already commenced and B.A No.4910 of 2018 3 in view of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the applicant is not entitled to be enlarged on bail at this stage. 6. I have considered the submissions advanced and have gone through the materials on record. 7. As rightly submitted by the learned Public Prosecutor, the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. The limitations on granting of bail specified in clause (b) of sub Section (1) of Section 37 of the Act 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. It can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) is “reasonable grounds” which expression means something more than prima facie grounds. It connotes B.A No.4910 of 2018 4 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. However, the court while considering the application for bail with reference to Section 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. 8. The discrepancies pointed out by the learned counsel appearing for the applicant is not of such a nature which would B.A No.4910 of 2018 5 persuade this Court to bypass the express mandate under Section 37 of the Act. Those are matters which are to be considered by the trial court at the appropriate stage. The trial court may have to exercise greater caution and scrutiny to decide whether or not to accept such evidence as regards arrest, search and seizure. At the stage of consideration of bail application, a much more detailed probe is not warranted lest it causes prejudice to either sides. After going through the records, I am of the considered view that a strong prima facie case is made out against the accused in view of the detection of deadly drugs from his possession. The report of chemical analysis supports the prosecution case. Having considered the submissions and after having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that the applicant is not guilty of the offence charged. ## 9. In **Supdt., NCB, Chennai** v. **R.Paulswamy** (2001 Cri.L.J.117), the Apex Court had occasion to hold this : "In the light of Section 37 no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is B.A No.4910 of 2018 6 satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. Adopting the exceptional course of granting bail to an accused involved in the offence under NDPS Act on ground that there was prima facie violation of Section 52 and there was prima facie non-compliance with Section 57 of the Act, was not proper. Compliance of Ss.52 and 57 is matter which could be established only at the trial and could not be prejudged at the stage of consideration for bail. The minimum which the lower Court should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court during bail stage regarding the compliance of the formalities mentioned in those two sections. The lower Court even had not recorded a finding in terms of Section 37 of the Act which is sine qua non for granting bail to an accused involved in the offence under the Act.” 10. In view of the above, the applicant may raise all his contentions before the trial court at the appropriate stage. The observations made above are for the sole purpose of considering B.A No.4910 of 2018 7 the bail application. The trial court shall proceed with the trial untrammelled by the observations made by this Court while disposing the bail applications. This application will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** rp/02.08 //TRUE COPY// P.A TO JUDGE.