FIJO v. Inspector of Police, Koratty Police Station, Thrissur; State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945** **BAIL APPL. NO. 11371 OF 2023** **CRIME NO.705/2021 OF Koraty Police Station, Thrissur AGAINST THE ORDER/JUDGMENT CRMP 473/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -IV, THRISSUR / III ADDITIONAL MACT, THRISSUR** ## **PETITIONER/S:** FIJO, AGED 35 YEARS S/O.JOSE PULLAN HOUSE, DESOM, KORATTY SOCIETY NAGAR MURINGOOR, THEKKUMMURI CHALAKUDY ,THRISSUR -680309, PIN - 680309 BY ADVS. K.VINAYA K.J.MANU RAJ A.P.VASAVAN ## **RESPONDENT/S:** 1 INSPECTOR OF POLICE , KORATTY POLICE STATION THRISSUR -, PIN - 680308 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 11371 OF 2023 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 3[rd] accused in Crime No.705/2021 of the Koratty Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 13.08.2021. 2. The gist of prosecution case is that: on 12.08.2021 at 10.45 a.m., the Police seized 20.845 kilograms of ganja from a vehicle bearing registration No.KL-39-G-4860 in which the accused 1 and 2 were travelling. It is revealed in the investigation that it was the 3[rd] accused who financed the accused 1 and 2 to purchase the ganja from the State of Andhra Pradesh. Thus, the accused have committed the offence. 3. Heard; Smt.K.Vinaya, the learned counsel appearing for the petitioner and Smt.Seetha S., the BAIL APPL. NO. 11371 OF 2023 3 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 implicated in the crime. It is solely on the basis of the confession statement made by the accused 1 and 2 that the petitioner has been impleaded as the 3[rd] accused. The petitioner is in judicial custody since 13.08.2021. The investigation in the case is complete. The petitioner's further detention is unnecessary. The accused 1 and 2 have already been enlarged on bail as per Annexure A4 order passed by this Court on 11.12.2023 in B.A.Nos.22303/2022 and 1901/2022. The petitioner is similarly placed as accused 1 and 2. Hence, the application may be allowed. 5. The application was strenuously opposed by the learned Public Prosecutor. She submitted that the petitioner is a history sheeter. There are more than 20 crimes registered against the petitioner including for having committed an offence under Section 302 of the BAIL APPL. NO. 11371 OF 2023 4 Indian Penal Code. It was the petitioner, who had financed the purchase of the contraband article. The parity of the petitioner is not that of accused 1 and 2. If the petitioner is let off on bail, he would certainly commit similar offences. In view of the rigour under Section 37 of the Act, the application may be dismissed. 6. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving an offence under the Act. It is apposite 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 subsection (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.” (highlighted) ## 7. A reading of the above provision indicates that a BAIL APPL. NO. 11371 OF 2023 5 person accused of an offence under Sections 19, 24 and 27-A of the Act and 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, an accused alleged to have committed an offence under the Act is entitled to be enlarged on bail not only subject to provisions under Sec.439 of the Code but also on satisfying the twin conditions contemplated under Sec.37 of the Act. 8. The Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] has interpreted the expression ‘reasonable grounds’ under Section 37 of the Act in the following manner: “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”. ## 9. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, BAIL APPL. NO. 11371 OF 2023 6 ## after referring to a host of judicial precedents on Section 37 of the Act, observed thus: “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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 10. This Court reminisces the decision in **State of Kerala and others v. Rajesh and others** [(2020) 12 SCC 122], an appeal arising from a bail order passed by this Court granting bail to a person accused of an offence under the Act, wherein the Honourable Supreme Court went to hold as follows: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released BAIL APPL. NO. 11371 OF 2023 7 temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘ 24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, BAIL APPL. NO. 11371 OF 2023 8 unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act”. 11. In the instant case, the petitioner was arrested on 13.08.2021. It is revealed from the investigation that it was the petitioner who financed the transaction for the purchase of the contraband article. It is further revealed that there are 20 cases registered against the petitioner including an offence under Section 302 of the Indian Penal Code. On an appreciation of the factual matrix, the law referred to above and considering the gravity of the BAIL APPL. NO. 11371 OF 2023 9 accusations leveled against the petitioner, there is every likelihood of him committing a similar offence, I am of the view that rigour under Section 37 of the Act is not diluted in the facts and circumstances of the present case. The application is meritless and is hence dismissed. Sd/- **C.S.DIAS JUDGE** rkc/11.01.24 BAIL APPL. NO. 11371 OF 2023 10 ## **APPENDIX OF BAIL APPL. 11371/2023** PETITIONER ANNEXURES Annexure A 1 CERTIFIED COPY OF THE ORDER DATED 16.2.2022 IN CRL.M.P. NO. 473/2022 IN CRIME NO. 705/2021 OF KORATTY POLICE STATION PASSED BY THE LEARNED SESSIONS JUDGE AnnexureA 2 TRUE COPY OF THE ORDER IN BA NO.7561 OF 2021 DATED 27.10.2021 Annexure A3 TRUE COPY OF THE ORDER IN BA. NO. 8835 OF 2021 DATED 27.1.2022 AnnexureA 4 TRUE COPY OF THE COMMON ORDER IN BA NO. 22303 OF 2022 AND BA NO.1901 OF 2022 DATED 11.12.2023