Harikrishnan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 BAIL APPL. NO. 977 OF 2024 ``` ``` CRIME NO.5/2021 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM AGAINST THE ORDER DATED IN BAIL APPL. NO.10860 OF 2023 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/SECOND ACCUSED:`** ``` HARIKRISHNAN, AGED 27 YEARS S/O. MADHUSOODHANAN NAIR,HOUSE NO.T.C.8/1362, EVRA, A70, THIRUMALA P.O.,ARAYALLOOR DESOM, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695006 ``` ``` BY ADVS. SHAJIN S.HAMEED MAHESH S. ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROSECUTOR SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.977 of 2024 -:2:- Dated this the 3[rd] day of June, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime. No.5/2021 of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, registered against the accused ( 5 in number) for allegedly committing the offences punishable under Sections 8(C), 20 (b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 07.05.2021. 2. The gist of the prosecution case is that: on 07.05.2021, at around 19.30 hours, the accused 1 and 2 were found in possession of and transporting 405 kg of dry ganja in a vehicle bearing registration No. KL-45-C6408. They were arrested on the spot with the B.A.No.977 of 2024 -:3:- contraband article. The investigation revealed that the accused 3 to 5 are also involved in the crime. The contraband was brought by the 4[th] accused. Thus, the accused have committed the above offences. 3. Heard; Sri.Shajin S. Hameed., 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 implicated in the crime. There are no incriminating materials to substantiate the petitioner’s involvement in the case. In any given case, the petitioner has been in judicial custody for more than three years, the investigation in the case is practically complete, and the final report has been laid. Yet, the trial in the case has not yet commenced. Hence, the petitioner is entitled to be released on bail in view of the decision of the Hon'ble B.A.No.977 of 2024 -:4:- Supreme Court in **Union of India through Narcotics Bureau, Lucknow V. Md. Nawaz Khan** (2021 KHC 6503). The petitioner's father is indisposed and has to undergo a surgery. Therefore, the petitioner may at least be released on interim bail. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies. Even though this Court had enlarged the fourth accused on bail, he is now absconding. The Investigating Officer has laid the final report. If the petitioner is released at this stage and if he absconds, the trial in the case would get prolonged. Hence, the application may be dismissed. B.A.No.977 of 2024 ## -:5:- 6. When the application came up for consideration on 07.03.2024, this Court called for a report from the Court of the Additional Sessions Judge-1, Thiruvananthapuram, to ascertain the status and the reasonable time period required to consider and dispose of S.C.No.1478/2021. 7. Pursuant to the above order, the learned Sessions Judge, by communication dated 13.03.2024, has informed this Court that even though the fourth accused was enlarged on interim bail by this Court as per the order in B.A.No. 6930/2023, the said accused has absconded. Consequently, the case against the fourth accused has been to be split up. Now, the case against the other accused is posted for framing of charge. There are a total of 19 witnesses to be examined. The court below requires four months time to conclude the proceedings. B.A.No.977 of 2024 -:6:- 8. The prosecution allegation is that the accused 1 and 2 were found in possession of 405 kg of dry ganja in a vehicle. They were arrested with the contraband then and there on the spot. Subsequently, the investigation revealed that the accused 3 to 5 are also involved in the case. Accordingly, they were implicated as the accused in the crime. The fact remains that the contraband involved in the case of a commercial quantity. 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 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 B.A.No.977 of 2024 -:7:- 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 under Sec.37 of the Act. 11. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable B.A.No.977 of 2024 -:8:- ## 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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. B.A.No.977 of 2024 -:9:- 13. 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. 14. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being B.A.No.977 of 2024 ## -:10:- ## thwarted by grant of bail”. 15. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity, and nature of the accusations leveled against the petitioner, the potential severity of the punishment that can be imposed on him, and the commercial quantity of the contraband involved in the case, I am of the firm view that there is no reasonable ground to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out reasonable grounds to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and is only to be rejected. However, considering the fact that the petitioner has been in judicial custody since 07.05.2021, and taking note of the report of the learned Sessions Judge dated 13.03.2024, I direct the Trial Court to consider and dispose of S.C.No.1478/2021 within a period of four months from the date of receipt of a B.A.No.977 of 2024 ## -:11:- copy of this order. With the above direction, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/03.06.24 B.A.No.977 of 2024 ## -:12:- ## **`APPENDIX OF BAIL APPL. 977/2024`** ``` PETITIONER ANNEXURES ANNEXURE-APHOTOCOPY OF THE RELEVANT PAGES OF THE COMPLAINT IN CRIME NO. 5/2021 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD. ANNEXURE-BPHOTOCOPY OF THE ADDITIONAL COMPLAINT FILEDBYTHEASSISTANTEXCISE COMMISSIONER(ENFORCEMENT), THIRUVANANTHAPURAM DATED 30/06/2022. ANNEXURE-CPHOTOCOPY OF THE ORDER DATED 18/11/2022 OF THE ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM. ANNEXURE-DPHOTOCOPY OF THE ADDITIONAL COMPLAINT FILEDBYTHEASSISTANTEXCISE COMMISSIONER(ENFORCEMENT), THIRUVANANTHAPURAM DATED 24/04/2023. ANNEXURE-EPHOTOCOPY OF THE ORDER DATED 20/07/2023 IN CRL.M.P.NO.2535/2023 OF THE ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM. ANNEXURE-FPHOTOCOPY OF THE ORDER DATED 24-01-2024 IN BAIL APPL.10860/2023 OF HIGH COURT ANNEXURE-GPHOTOCOPY OF THE ULTRASONOGRAPHY REPORT DATED 15/05/2024 OF THE FATHER OF PETITIONER ISSUED FROM SK HOSPITAL, EDAPPAZHANJI, THIRUVANANTHAPURAM. ANNEXURE-HPHOTOCOPY OF THE LETTER DATED 16/05/2024 ISSUED BY THE DOCTOR SK HOSPITAL, EDAPPAZHANJI, THIRUVANANTHAPURAM. ```