Favas K.P v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ## **`BAIL APPL. NO. 936 OF 2023`** ## **`PETITIONER/ACCUSED:`** ``` FAVAS K.P AGED 28 YEARS, S/O MUHAMMED KUNHI K, R/AT STAR NAGAR, BEVINJE, CHENGALA, CHENGALA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT, PIN - 671541 BY ADV K.V.SABU ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` P G MANU SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.No.936 of 2023 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 14[th] day of March, 2023** This is an application for regular bail filed by the sole accused in Crime No.399 of 2022 of Kasargode Police Station, where prosecution alleges commission of offence punishable under Section 22(C) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act” for short), 1985 by the accused. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Meticulously gone through the relevant documents form part of the case diary placed by the learned Public Persecutor. 3. The case of the prosecution is that at 10:15 hours on 28.04.2022 accused was found in possession of 130 grams of MDMA kept for the purpose of sale near railway station, Kasargode. Accordingly, he was nabbed along with contraband and crime was registered alleging commission of the above offence. 4. The learned counsel for the petitioner highlighting the custody of the petitioner from 28.04.2022 and also the progress of the investigation. It is argued further of the petitioner has no ``` B.A.No.936 of 2023 ``` ``` 3 ``` criminal antecedents. It is argued that when the accused has been in custody for a long period and in cases were trial could not be commenced within a reasonable time, the rigour under Section 37 NDPS Act can be satisfied to grant bail to an accused who involved in crime where commercial quantity of contraband was allegedly to be seized, for the said reasons. In this connection, the learned counsel placed a decision of the Apex Court in SLP Crl.No.6690/2022 **Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh [Manu/SCOR/11561/2023]** dated 30.05.2022. 5. The learned Public Prosecutor would submit that this is a case where red handed recovery of the contraband is involved and therefore the petitioner’s complicity in this matter is well made out prima facie. It is also pointed out by the learned Public Prosecutor that, the case dealt by the Apex Court, the Apex Court granted bail to an accused who involved in possession of commercial quantity of contraband in consideration of his prolonged custody for a period of 2.5 years and also taking note of the fact that the trial also could not be commenced. It is submitted by the learned Public Prosecutor that in this case the accused was arrested only on 28.04.2022 and there is likelihood of trial at the earliest. Therefore, applying the ratio in **Dheeraj Kumar Shukla** (Supra) the petitioner herein cannot be released ``` B.A.No.936 of 2023 ``` ``` 4 ``` on bail. 6. To be on the crux of this matter, at about 10.15 hours on 28.04.2022, the accused was arrested along with 130 grams of MDMA. The learned counsel for the petitioner pointed out that there is likelihood of reporting the contraband as methamphetamine, if so the complicity of the petitioner is much less. However, no chemical analysis report received so far is the submission of the learned Public Prosecutor. The learned Public Prosecutor would submit that, if at all contraband found to be methamphetamine and then also 130 grams of methamphetamine is categorized under commercial quantity and therefore the same would not benefit, the petitioner to get over the rigour of Section 37 of the NDPS Act. 7. As of now contraband found to be possessed the petitioner is alleged to be MDMA comes to 130 grams, ie, commercial quantity. In **Dheeraj Kumar Shukla** (supra), the Apex Court released an accused on bail who possessed commercial quantity of Ganja noting three aspects which is as under: However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed. ``` B.A.No.936 of 2023 ``` ``` 5 ``` 8. In this case also the petitioner has no criminal antecedents. However, he has been in custody for the last about nine months alone and the chance of he being tried without delay is there. Therefore the ratio for release of the petitioner in **Dheeraj Kumar Shukla** (Supra) not as such to be applied to the facts of this case. Therefore rigour under Section 37 NDPS Act would apply. 9. No doubt, 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 non-bailable.-- - (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 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 ``` B.A.No.936 of 2023 ``` ``` 6 ``` 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. 10. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person 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. 11. 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 ``` B.A.No.936 of 2023 ``` ``` 7 ``` recording of satisfaction that the accused is not guilty of the offence charged. 12. It was further held that the Court while 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. 13. 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 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: ``` B.A.No.936 of 2023 ``` ``` 8 ``` 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 [2023 Crl.L J 799], **Union of India v. Jitendra Giri** . 14. 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. 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. 15. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving ``` B.A.No.936 of 2023 ``` ``` 9 ``` 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. 16. Going by the prosecution allegations, this Court 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** Raj 15.03.2023.