JAMAL HAMSA @ AHANA v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 BAIL APPL. NO. 3869 OF 2024 ``` ``` CRIME NO.90/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL ``` ``` SQUAD, ERNAKULAM, ERNAKULAM ``` ## **`PETITIONER:`** ``` JAMAL HAMSA @ AHANA, AGED 26 YEARS D/O.HAMSA, POOKAITHA HOUSE, KOONAMTHAI, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682312 BY ADVS. SMT.PADMA LAKSHMI SMT.ATHIRA C.K. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SR.PP SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.3869 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 29[th] day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, (in short, ‘Code’) by the 2[nd] accused in Crime No.90/2023 of the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, which is registered against two accused persons for allegedly committing the offences punishable under Sections 22(c), 27(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act', for short). The petitioner was arrested and remanded to judicial custody on 29.11.2023. 2. The gist of the prosecution case is that; on 29.11.2023, at around 20:35 hours, the Detecting Officer and party found the accused 1 and 2 in conscious possession of 193.0403 grams of MDMA, which was stored in a room in a lodge at Vazhakkala ``` B.A.No.3869 of 2024 ``` ``` 3 ``` Village. The accused were arrested on the spot with the contraband articles. Thus, the accused have committed the above offences. 3. Heard; Smt.Padma Lakshmi, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner had strenuously argued that the petitioner is innocent of the accusations levelled against her. In fact, the petitioner has no complicity in the crime. The petitioner is a sex worker. She only went with the 1[st] accused, her customer, who had hired the room, from where the contraband was seized. The petitioner was unaware that the 1[st] accused was in possession of the contraband article. When the Detecting Officer and party conducted the search, the petitioner so happened to be in the room along with the 1[st] ``` B.A.No.3869 of 2024 ``` ``` 4 ``` accused. In the said background that the petitioner has been implicated in the crime. The petitioner has been in judicial custody for the last seven months, the investigation in the case is complete, recovery has been effected and the final report has been laid. Therefore, the petitioner’s further detention is not necessary. 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, contending that the petitioner and the 1[st] accused were found in conscious possession of 193.0403 grams of MDMA, which has now turned out to be 'methamphetamine’ as per the chemical analysis report. Even then, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. The petitioner has not diluted the rigour under the Act. Therefore, the ``` B.A.No.3869 of 2024 ``` ``` 5 ``` petitioner cannot aspire to be enlarged on bail. Hence, the bail application may be dismissed. 6. The prosecution case is that, the petitioner and the 1[st] accused were found in a hotel room in Vazhakkala Village and 193.0403 grams of MDMA was seized from their possession. As per the chemical analysis report, the contraband is now 'methamphetamine’. Even then, as per the Schedule appended to the Act, the contraband is of a commercial quantity. The petitioner’s contention is that she is innocent in the matter because she had gone with the 1[st] accused, her customer, to have sexual intercourse because she is a sex worker. She was unaware that the contraband was stored in the room. Indisputably, Section 29 of the Act has been incorporated alleging that the petitioner and the 1[st] accused had a conspiracy for the purpose of dealing in the contraband article. Whether or not it was only ``` B.A.No.3869 of 2024 ``` ``` 6 ``` the 1[st] accused who brought the contraband and the petitioner had gone to the room only for the purpose of having sexual intercourse with the 1[st] accused are matters that is to be ultimately decided at the time of trial. The fact is that the contraband involved in the case is of a commercial quantity. 7. 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 ``` B.A.No.3869 of 2024 ``` ``` 7 ``` 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 subsection (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”. 8. 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 ``` B.A.No.3869 of 2024 ``` ``` 8 ``` 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. 9. 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 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”. ## 10. In **State of Kerala and others v. Rajesh** **and others** [(2020) 12 SCC 122], the Honourable ``` B.A.No.3869 of 2024 ``` ``` 9 ``` ## Supreme Court held as follows: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing ``` B.A.No.3869 of 2024 ``` ``` 10 ``` with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding ``` B.A.No.3869 of 2024 ``` ``` 11 ``` the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any ``` B.A.No.3869 of 2024 ``` ``` 12 ``` person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. ``` B.A.No.3869 of 2024 ``` ``` 13 ``` 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act”. 11. As observed in **Rajesh** 's case (supra), 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. 12. 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 applications for bail in the following lines: “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 ``` B.A.No.3869 of 2024 ``` ``` 14 ``` 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”. 13. Indisputably, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 14. On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioner, the potential severity of the punishment that can be imposed on the petitioner, the ``` B.A.No.3869 of 2024 ``` ``` 15 ``` commercial quantity of the contraband involved in the case and the prima facie material that show the petitioner's involvement in the crime, I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of the offence alleged against her and that she is not likely to commit a similar offence if she is enlarged on bail. The petitioner has not made out any valid ground to dilute the rigour under Section 37 of the Act. The application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS** **JUDGE** NAB