Iddeenkunhi v. State of Kerala and Chandera Police Station, Kasaragod

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ``` BAIL APPL. NO. 896 OF 2023 ``` ``` CRIME NO.782 OF 2022 OF CHANDERA POLICE STATION, KASARGOD ``` ## **`PETITIONER/ACCUSED:`** ``` IDDEENKUNHI AGED 32 YEARS S/O.ABDUL RAHIMAN R/AT MAZIDA MAHAL MANGALPADY, AMBAR PALLAM, KASARAGOD, PIN - 671324 BY ADV VINAY M.E. ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 CHANDERA POLICE STATION THE STATION HOUSE OFFICER, CHANDERA POLICE STATION, KASARAGOD DISTRICT., PIN - 671310 BY SRI.PG MANU, SR.PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 2 ``` ## **O R D E R** Dated this the 15[th] day of February, 2023 This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the accused in crime No.782/2022 of Chandera police station, Kasargod. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the case diary materials placed by the learned Public Prosecutor in this matter. 4. The prosecution allegation is that at about 17.30 hours on 07.09.2022, there was collision between two vehicles and thereafter, the accused was restrained by the people in the locality. On search of car bearing registration No.KL-60-N2871 driven by the accused, 23.46 gram of MDMA was recovered. Accordingly, he was nabbed and crime alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 3 ``` (hereinafter referred to as ‘the NDPS Act’ for convenience) was registered. 5. The learned counsel for the petitioner would submit that in this matter, there is clear violation of the mandate of Section 50 of the NDPS Act and therefore, the entire prosecution shall go. He also pointed out that the petitioner has been in custody from 07.09.2022 and therefore, he deserves bail. 6. Whereas the learned Public Prosecutor produced case diary containing the seizure mahazar and opposed bail on the submission that the mandate of Section 50 of the NDPS Act would not apply in this case. 7. On perusal of the case diary, it could be gathered that Chandera police, on getting information pursuant to an accident arose out of collision between two vehicles, inclusive of car bearing registration No.KL-60-N-2871 driven by the accused, reached the place of occurrence, and it was found ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 4 ``` that the petitioner herein possessed 23.46 gram of MDMA in side the car and in his body. According to the learned counsel for the petitioner, since body search was conducted and part of the contraband was seized from the whole body of the accused, Section 50 of the NDPS Act should have been complied. 8. On perusal of the mahazar read along with the prosecution records, it could be gathered that the recovery of the contraband was not the result of any prior information. In fact, the vehicle and the accused were searched when he was restrained by the people in the locality after the accident and the recovery was a chance recovery, which is excluded from the ambit of Section 50 of the NDPS Act. Therefore, the submission of the learned counsel for the petitioner that there is non-compliance of Section 50 of the NDPS Act could not yield and the same is not a ground to grant bail in a case involving commercial quantity, where the rider under Section 37 of the NDPS Act would apply. ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 5 ``` 9. Insofar as the criminal antecedents of the petitioner is concerned, the accused had involvement in the following crimes. 1. Crime No.118/22 of Manjeswaram Police Station under Section 27(a) of NDPS Act. 2. Crime No.231/20 of Manjeswaram Police Station under Section 27(b) of NDPS Act. 3. Crime No.884/21 of Manjeswaram Police Station under Section 279 IPC & Section 132(i) of MV Act. 4. Crime No.783/22 of Chandera Police Station under Section 225(B) IPC 5. Crime No.125/22 of Banglore Adugodi Police Station under Section 20(b)ii(B), 22, 22(b) of NDPS Act. 10. It is relevant to note that the petitioner is a person having criminal antecedents as listed above and two among the cases were registered during 2022 in Chandera police station and Adugody police station, Bangalore. The same are pertaining to possession of intermediate quantity of narcotic ## **`BAIL APPL. NO. 896 OF 2023`** ## **`6`** drugs. Similarly, during 2022 itself, he pleaded guilty in crime No.118/2022 of Manjeswaram police station, where small quantity of contraband was involved. Apart from that, he had pleaded guilty in crime No.231/2020 of Manjeswaram police station involving small quantity. The history of the petitioner would go to show that he is a habitual offender, who has been repeatedly involving in NDPS crimes in sequence. 11. In so far as grant of regular bail to the accused who was nabbed on the allegation of possession of commercial quantity of contraband, Section 37 of the NDPS Act would squarely 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 APPL. NO. 896 OF 2023 ``` ``` 7 ``` _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._ 12. 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. 13. 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 ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 8 ``` 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. 14. 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 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. ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 9 ``` 15. 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) KHC 557: AIR ## **`BAIL APPL. NO. 896 OF 2023`** ## **`10`** 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848] 16. 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. 17. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 11 ``` satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore application for regular bail at the instance of the petitioner must fail. Hence this petition stands dismissed. ## **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` BAIL APPL. NO. 896 OF 2023 ``` ``` 12 ``` ## **`APPENDIX OF BAIL APPL. 896/2023`** ``` PETITIONER ANNEXURES Annexure 1CERTIFIED COPY OF THE ORDER OF DISTRICT & SESSIONS JUDGE-I KASARAGOD IN CMP NO.5419/2022 Annexure 2CERTIFIED COPY OF THE FIS IN CRIME NO. 782/2022 OF CHANDERA POLICE ```