Johny Joy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945** ## **BAIL APPL. NO. 11356 OF 2023** **CRIME NO.907/2023 OF Angamali Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CRMC 3114/2023 OF DISTRICT COURT &** ## **SESSIONS COURT, ERNAKULAM** ## **PETITIONER/S:** JOHNY JOY AGED 22 YEARS S/O JOY, CHIRAKKAL HOUSE, PADIPPURA LANE,CHELAMATTOM VILLAGE PERUMABAVOOR,ERNAKULAM DISTRICT ., PIN - 683550 BY ADV AJEESH M UMMER ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 11356 OF 2023 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 1[st] accused in Crime No.907/2023 of the Angamali Police Station, Ernakulam, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 22(c), 8(C) and 29 of the Narcotic Drugs . and Psychotropic Substances Act, 1985 (in short, “Act”) The petitioner was arrested on 07.09.2023. 2. The gist of the prosecution case is that: on 07.09.2023 around 12.15 a.m., the 1[st] accused was found in possession of 147 grams of MDMA. The 1[st] accused was the driver of the vehicle, which was hired by the 2[nd] accused. Thus, the accused have committed the above offences. 3. Heard; Sri.Ajeesh M. Ummer, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted BAIL APPL. NO. 11356 OF 2023 3 that the petitioner is totally innocent of the accusations leveled against him. The petitioner is only a 22 year old boy and is a Driver by profession. The petitioner was unaware of the contraband that was in the vehicle. The petitioner has been in judicial custody since 07.09.2023. The investigation in the case is complete. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the contraband was seized from the conscious possession of the petitioner. The contraband is of commercial quantity. The investigation in the case is in progress. The rigour under Section 37 of the Act applies to the facts and circumstances of the case. Hence, the bail application may be dismissed. 6. 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 BAIL APPL. NO. 11356 OF 2023 4 ## 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 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.” ## 7. 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 accused of committing an offence under the Act is subject to provisions contained under BAIL APPL. NO. 11356 OF 2023 5 Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 8. 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”. ## 9. 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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. BAIL APPL. NO. 11356 OF 2023 6 10. 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 application. 11. 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”. BAIL APPL. NO. 11356 OF 2023 7 On an anxious consideration of the materials placed on record, the law on the point and taking into account the nature, seriousness and gravity of the accusations leveled against the petitioner, that the investigation in the case is in progress and that the contraband article is of commercial quantity, I do not find any reasonable ground to hold that the petitioner is not guilty of the offences alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. Therefore, I am of the view that the rigour under Section 37 of the Act applies to the facts and circumstances of the case. The application is meritless and is only to be dismissed. ## Resultantly, the application is dismissed. Sd/- **C.S.DIAS JUDGE** rkc/23.01.24 BAIL APPL. NO. 11356 OF 2023 8 ## **APPENDIX OF BAIL APPL. 11356/2023** PETITIONER ANNEXURES Annexure 1 A COPY OF THE ORDER IN CRL MC 3114/2023 DATED 31.10.2023 ,HON'BLE COURT OF SESSIONS, ERNAKULAM