JUNAIS CHATHERI v. STATE OF KERALA & SUB INSPECTOR OF POLICE, THIRUNELLY POLICE STATION, WAYANAD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944** **BAIL APPL. NO. 1599 OF 2023** CRIME NO.510/2022 OF THIRUNELLY POLICE STATION, WAYANAD. ## **PETITIONER/ACCUSED NO.4:** JUNAIS CHATHERI AGED 24 YEARS S/O. MUSTHAFA, CHATHERI HOUSE, POOKKIPARAMB POST,THIRURANGADI TALUK, MALAPPURAM, PIN - 676508 BY ADVS. MOHAMMED SIYAD M.F. THOMAS T.VARGHESE ## **RESPONDENTS/COMPLAINANT & INVESTIGATING OFFICER:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SUB INSPECTOR OF POLICE THIRUNELLY POLICE STATION, WAYANAD, PIN - 673575 BY SR PUBLIC PROSECUTOR SMT.T V NEEMA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 1599 OF 2023 2** ## **ORDER** Dated this the 6[th] day of March, 2023 This is an application for regular bail, filed by the 4[th] accused in Crime No.510/2022 of Thirunelly Police Station, Wayanad. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the case diary materials produced by the learned Public Prosecutor. 4. The prosecution case is that, at about 8.10 a.m. on 5.11.2022, accused Nos.1 to 3 were arrested along with 106.07 gm of MDMA, while they were transporting the same, in a Maruti Swift Car, bearing Registration No.KL-55-B 9002. Accordingly, crime, alleging commission of offences punishable under Section 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’, hereinafter) was registered. During investigation, it has **BAIL APPL. NO. 1599 OF 2023 3** been revealed that the MDMA was jointly purchased and transported by the accused Nos.1 to 4 and the purchase was by using the money given by the 4[th] accused also. On search of the 4[th] accused at Bangalore, the apparatus for storing MDMA (Ecstasy) was seized along with MDMA (Ecstasy) covers, to store the same, though no contraband was seized. The prosecution given much emphasis in this evidence, apart from the confession statement of the other accused and that of the petitioner. 5. It is pointed out by the learned counsel for the petitioner that the petitioner is innocent and the other accused are inimical terms with the petitioner and therefore, they purposefully given the name of the petitioner, though he has no role in this crime. It is also argued that, he has been in custody from 18.11.2022 and therefore, taking note of the progress of investigation and his status as a first time offender, the petitioner may be released on bail. 6. The learned Public Prosecutor opposed bail and submitted that the petitioner herein has involvement in the **BAIL APPL. NO. 1599 OF 2023 4** transport of MDMA involving commercial quantity and his complicity could be gathered from the recovery of apparatus to use MDMA and covers to store the same. 7. In this case, originally contraband was seized from accused Nos.1 to 3, while they were transporting the same in a Maruthi Swift Car. But, later, investigation revealed that the involvement of the petitioner also in transport and he also had given money for the purchase of the same. When he was searched at Bangalore, apparatus to use MDMA (Ecstasy) and covers to store the MDMA (Ecstasy) was seized, to corroborate his involvement in this crime. Therefore, the innocence canvassed by the learned counsel for the petitioner, cannot be appraised at this stage and the same can be raised at the time of trial. 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 non-bailable.--_ **BAIL APPL. NO. 1599 OF 2023 5** - _(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 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 **BAIL APPL. NO. 1599 OF 2023 6** ‘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 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. 1599 OF 2023 7** 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) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR **BAIL APPL. NO. 1599 OF 2023 8** 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 **BAIL APPL. NO. 1599 OF 2023 9** 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 released on bail. Accordingly, this bail application stands dismissed. **Sd/-** ## **A. BADHARUDEEN** **JUDGE** Bb