Hashir M.H v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 BAIL APPL. NO. 3511 OF 2023** **CRMC 1028/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO. 1544/2022 OF ERNAKULAM TOWN SOUTH POLICE STATION** ## **PETITIONER/ACCUSED NO.3:** HASHIR M.H AGED 26 YEARS S/O LATE HABEEB M.H, MUTHIRAKKATHARAMEL HOUSE, ELATHUR VILLAGE, KOZHIKODE DISTRICT, PIN - 673303 BY ADV RASMI NAIR T. ## **RESPONDENTS/STATE AND INVESTIGATING OFFICER:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER OF ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM DISTRICT, PIN - 682015 BY SR.PUBLIC PROSECUTOR SMT. T V NEEMA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 3511 OF 2023 2** ## **ORDER** Dated this the 24[th] day of May, 2023 This is an application for regular bail, filed by the 3[rd] accused in Crime No.1544/2022 of Ernakulam Town South Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents. 4. The prosecution allegation is that, at about 4.00 p.m. on 21.12.2022, the Sub Inspector of Police, Ernakulam South conducted search in Room No.304 in Caprice Residency Hotel at Panampally Nagar and recovered 52.08 grams of MDMA from the possession of the petitioner and two others (accused in this crime). It is alleged that, 12.79 grams of MDMA found in the pocket of the 1[st] accused and 24.16 grams of MDMA found in the pocket of the 2[nd] accused and 15.13 grams of MDMA found in the shoulder bag of the petitioner. The further allegation is that the accused brought the contraband from Bangalore for the purpose of sale. It is on this premise, crime, alleging commission of offence punishable under ## **BAIL APPL. NO. 3511 OF 2023 3** Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter), was registered. 5. It is submitted by the learned counsel for the petitioner that the petitioner has been in custody from 21.12.2022 and the contraband was found to be Methamphetamine and not MDMA. It is also submitted that, if so, contraband seized from the petitioner, which is confined to 15.13 grams is intermediate quantity and therefore, the petitioner is entitled to get regular bail, after diluting the rider under Section 37 of the NDPS Act. 6. Whereas, it is submitted by the learned Public Prosecutor that, the total quantity of contraband seized is 52.08 grams and the same is commercial quantity in the case of Methamphetamine also. Therefore, it is difficult to dilute the rider under Section 37 of the NDPS Act. 7. In this matter, the specific allegation in the prosecution is that, the accused, in furtherance of their common intention, hatched criminal conspiracy and in consequence of the conspiracy, at about 4.00 p.m. on 21.12.2022, they were found in joint possession of 52.08 grams of MDMA. Anyhow, the Chemical **BAIL APPL. NO. 3511 OF 2023 4** Analysis Report not so far produced. Even assuming that the contraband is Methamphetamine, then also the same is commercial quantity. 8. 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 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._ **BAIL APPL. NO. 3511 OF 2023 5** 9. 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. 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 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 ## **BAIL APPL. NO. 3511 OF 2023 6** 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 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.** ## **BAIL APPL. NO. 3511 OF 2023 7** **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]. The latest decision on this point is one reported in [2023 Crl.L.J.799], **Union of India v. Jitendra Giri** . 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. 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, 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 **BAIL APPL. NO. 3511 OF 2023 8** 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 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** Bb