Hebimon v. State of Kerala and Station House Officer, Chadayamangalum Police Station, Kollam

## `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. 2430 OF 2024 ``` ``` CRIME NO.502/2023 OF CHADAYAMANAGALAM POLICE STATION, KOLLAM ``` ``` AGAINST THE ORDER DATED IN SC NO.1207 OF 2023 OF I ADDITIONAL DISTRICT COURT, KOLLAM ``` ## `PETITIONER:` ``` HEBIMON, AGED 42 YEARS S/O.AMRITHANANDAN, HEBI NIVAS, VALAVUPACHA P.O, CHITHARA VILLAGE, KOLLAM, PIN – 691559 ``` ``` BY ADVS.K.SIJU ANJANA KANNATH ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ``` 2STATION HOUSE OFFICER, CHADAYAMANGALAM POLICE STATION, KOLLAM DISTRICT, PIN – 691534 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2430/2024_ _-: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 first accused in Crime No.502/2023 of the Chadayamangalam Police Station, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 20(b)(ii) (C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 03.04.2023. 2. The essence of the prosecution case is that: on 03.04.2023, at around 13.15 hours, the Detecting Officer and party intercepted the vehicle bearing Reg. No.K-01/CK-2624, near Nilamel Sastha Temple on the M.C. road, and conducted a search of the vehicle. In the search, 53.860 kilograms of ganja were seized from _B.A.No.2430/2024_ ## _-:3:-_ the vehicle. The accused was arrested on the spot with the contraband article. Thus, the accused have committed the above offences. 3. Heard; Sri. K. Siju, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material on record to establish the petitioner’s involvement in the case. In fact, the petitioner was arrested from Kaliyikkavila, near Tamil Nadu and not from Nilamel Sastha Temple, as alleged by the prosecution. This very fact shows the falsity in the crime. The petitioner had filed W.P. (Crl.)No.890/2023 before this Court for a direction that the CDR/data involved in the case may be preserved. _B.A.No.2430/2024_ ## _-:4:-_ By Annexure-A2 order, this Court disposed of the writ petition by directing the fifth respondent therein to preserve the CDR/data from the period from 02.04.2023 to 03.04.2023 to be used at the appropriate stage. The petitioner has been in judicial custody since 03.04.2023, the investigation in the case is complete, and the final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the petitioner was found in conscious possession of commercial quantity of contraband. Moreover, the petitioner is an accused in Crime No.276/2021 of the Chathannoor Police Station, Kollam, for committing a crime of similar nature, wherein 84 kilograms of ganja _B.A.No.2430/2024_ ## _-:5:-_ was seized from his possession. This shows that the petitioner is a history sheeter. Since a commercial quantity of contraband is involved in the case, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he was allegedly found in conscious possession of 53.860 kilograms of ganja. He was arrested on the spot on 03.04.2023. It is not disputed that the petitioner is also an accused in Crime No.276/2021 of the Chathannoor Police Station, for allegedly committing an offence of similar nature. 7. The cardinal contention of the learned counsel for the petitioner is that, the Investigating Officer has falsely implicated the petitioner in the present crime. The CDR/data would show that the petitioner was not ## _B.A.No.2430/2024_ ## _-:6:-_ even at the spot, would show that the entire prosecution allegation is false. 8. 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 nonbailable.** —(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 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. ## 9. A plain reading of the above provision _B.A.No.2430/2024_ ## _-:7:-_ 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. 10. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable 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 _B.A.No.2430/2024_ ## _-:8:-_ 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. 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 drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. ## 12. 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 _B.A.No.2430/2024_ ## _-:9:-_ application. 13. 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 thwarted by grant of bail”. 14. On an evaluation of the materials on record, it can be seen that the contraband involved in the case is _B.A.No.2430/2024_ ## _-:10:-_ of a commercial quantity. Whether the petitioner was at the spot or not is a matter of evidence. Moreover, the petitioner is a person with criminal antecedents. Therefore, the petitioner fails to qualify the second limb of Section 37 of the Act, as laid down by the Hon'ble Supreme Court in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh** [2023 KHC 6545]. 15. On comprehending the seriousness, gravity, and nature of the offences alleged 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 satisfied that there are no reasonable grounds 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 any reasonable ground to dilute the rigour _B.A.No.2430/2024_ _-:11:-_ under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/03.06.24 //True copy// P.A. To Judge