Hashir M.H v. State of Kerala and The Station House Officer, Ernakulam Town South Police Station

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 BAIL APPL. NO. 6151 OF 2023 ``` ``` CRIME NO.1544/2022 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM ``` ## **`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 ADVS. R.SURAJ KUMAR ANJANA R.S. NITHESH KUMAR A.N SNEHA RAVEENDRAN ``` ## **`RESPONDENT/STATE AND INVESTIGATING OFFICER:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM DISTRICT, PIN - 682015 ``` ``` BY SENIOR PUBLIC PROSECUTOR SRI.K.DENNY DEVASSY ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 6151 OF 2023 2 ``` ## **ORDER** Dated this the 18[th] day of October, 2023 This is the second application for regular bail, filed by the petitioner, who is the 3[rd] accused in Crime No.1544/2022 of Ernakulam South Police Station, Ernakulam. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. 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. 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 Section 22(c) r/w Section 29 of the Narcotic ``` BAIL APPL. NO. 6151 OF 2023 3 ``` Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter), was registered. 4. Earlier, the bail application filed by the petitioner was dismissed as per Annexure A5 order, dated 24.5.2023, the relevant paragraphs are as under: _“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. 6151 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 nonbailable.--_ _(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_ ## **`BAIL APPL. NO. 6151 OF 2023 5`** _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._ _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_ ``` BAIL APPL. NO. 6151 OF 2023 6 ``` _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._ _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. Niyazuddin** [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738],_ _**State of Kerala v. Rajesh** [2020(1)_ ``` BAIL APPL. NO. 6151 OF 2023 7 ``` _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 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_ ``` BAIL APPL. NO. 6151 OF 2023 8 ``` _released on bail._ _Accordingly, this bail application stands dismissed.”_ 5. The learned counsel for the petitioner submitted that, now, the contraband is found to be Methamphetamine. The said aspect is conceded by the learned Public Prosecutor also. 6. However, even after the contraband is found as Methamphetamine, the same remains as commercial quantity, since the total quantity would come to 52.08 grams. In fact, in this case, the earlier bail application was dismissed holding that Section 37 of the NDPS Act, could not be diluted in the facts of the case. As of now also, there is nothing either argued or available to take a different view to hold a change in circumstances to dilute the rider under Section 37 of the NDPS Act. In view of the matter, this bail application must fail and the same is dismissed, accordingly. Registry is directed to forward a copy of this order to the ``` BAIL APPL. NO. 6151 OF 2023 9 ``` Special Court, for information and future guidance. Sd/- **A. BADHARUDEEN JUDGE** Bb