K. Shameer v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 BAIL APPL. NO. 3748 OF 2023 AGAINST THE ORDER/JUDGMENTCRMP 324/2023 OF SPECIAL COURT ``` ``` (NDPS ACT CASES), VADAKARA CRIME NO.302/2023 OF IRITTY POLICE STATION, KANNUR PETITIONER/ACCUSED: ``` ``` K.SHAMEER AGED 41 YEARS S/O.KHADAR HAJI, SAJIDA MANZIL, PADUPARA, SIVAPURAM, KANNUR DISTRICT, PIN – 670702. BY ADVS. M.P.PRIYESHKUMAR SHANAVAS NALAKATH RANDUPURAYIL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` BY SENIOR PUBLIC PROSECUTOR SRI P.G.MANU ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23.05.2023, THE COURT ON 02.06.2023 DELIVERED THE FOLLOWING: ``` B.A.No.3748/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.3748 of 2023_ _================================ Dated this the 2nd day of June, 2023_ ## _**O R D E R**_ This is an application for regular bail filed by the sole accused in Crime No.302/2023 of Iritty Police Station, Kannur, where prosecution alleges commission of offences punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act' for short). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the report of the Investigating Officer placed by the learned Public Prosecutor. 3. The prosecution case is that when the Sub Inspector of Police, Iritty was checking the vehicles near Koottupuzha bridge in Kerala-Karnataka border at about 9.40 a.m on 24.03.2023, the B.A.No.3748/2023 3 accused was found to have possessed 12.74 grams of MDMA and was carrying the same in a car bearing Registration No.KL-58-A766. Pursuant to recovery of the contraband, the accused was nabbed and has been in custody. 4. The learned counsel for the petitioner would submit that the petitioner is innocent. It is submitted that the petitioner, who has been working as a PWD Contractor, is in inimical terms with the police and accordingly he was implicated in this crime without any justification. It is also submitted that the mandatory compliance under Section 50(1) of the NDPS Act is not done in this case. It is also pointed out that gazetted officer cannot be a police officer. 5. Whereas the learned Public Prosecutor would submit that the petitioner is a habitual offender and the recovery was from the dashboard of the car driven by the petitioner and, therefore, Section 50 has no application in the present case. The learned B.A.No.3748/2023 4 Public Prosecutor would also submit that the petitioner had involved in COTPA Act case in Maloor Police Station and he has involvement in 18 cases apart from this one. It is also pointed out that since the quantity of contraband is commercial, this Court cannot grant bail without diluting the rigour under Section 37 of the NDPS Act. 6. On perusal of the case diary, it is apparent that commercial quantity of MDMA was seized from the dashboard of the car driven by the accused, as part of chance recovery. In fact, there is no necessity to comply with Section 50 of the NDPS Act in case where there is no body search. Even otherwise, if there is non compliance of Section 50 while conducting body search, then also, for the contraband seized from the car compliance of Section 50 is not mandatory and as such the said recovery is perfectly legal. In this matter, the petitioner was arrested on 24.03.2023 and has been in custody. Following are the crimes reported as against the B.A.No.3748/2023 5 petitioner: **==> picture [36 x 204] intentionally omitted <==** - (1) Cr.No.3/12 u/s KAAPA Act of Maloor P.S, - (2) Cr.No.917/21 u/s 383 r/w 34 IPC of Valapattanam P.S, - (3) 202/14 u/s 149, 120(b), 420 r/w 34 IPC of Maloor P.S, (4) 177/13 u/s 341, 323 of Maloor P.S; - (5) Cr.No.320/11 u/s 341, 323, 506(1) IPC of Maloor P.S; - (6) Cr.No.1032/11 u/s 4 & 5 of ES Act of Mattanur P.S; - (7) 255/13 u/s 118(i) of KP Act, 6(a) r/w 24 of COTPA Act - of Maloor P.S; **==> picture [36 x 93] intentionally omitted <==** - (8) 250/16 u/s 107 CrPC of Maloor P.S; - (9) 63/16 u/s 143, 147, 283, 29(b) r/w 149 IPC; - (10) 455/18 u/s 448, 341, 324, 308, 506(1) r/w 34 IPC; - (11) 352/21 u/s 151 CrPC, 187/04, u/s 55(A) of Abkari Act - of Kasaba P.S Palakkad, **==> picture [36 x 56] intentionally omitted <==** (12) Cr.No.773/10 u/s 406, 420 IPC of Kannur Town PS (13) Or.No.13/08 u/s 69 of Kerala Forest Act & 3(1) Forest B.A.No.3748/2023 6 Act 1995 of Chedalath Forest Range Wayanad; (14) Or.No.12/08 u/s 9/S 27 (i)(d)(III)(1) & (ii) & Kerala Forest Act 1961 of Chedalath Forest Range Wayanad; (15) Or.No.2/08 u/s 27 (i)(IV)(III) Forest Act of North Wayanad Division Range; (16) Or.No.1/08 u/s 27(1)(d) 52, 61A of Forest Act of Kottiyoor Forest Range; (17) Or.No.31/07 u/s 27 (1)(d), (e) (III)(IV) & 61(A) of Forest Act of Kottiyoor Forest Range & (18) Virajpetta Civil Judge & JMFC Court Viraj Petta in CC.85/2019 u/s 138 of N.I Act in Karnataka State.” 7. In fact, the involvement of the petitioner in 18 crimes of serious nature itself is a reason to deny bail to him. That apart, no doubt, when considering bail plea of an accused in crimes involving commercial quantity of contraband, this Court cannot grant bail without diluting the rigour under Section 37 of the NDPS B.A.No.3748/2023 7 Act. 8. 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.--_ _(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._ B.A.No.3748/2023 8 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 ‘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. B.A.No.3748/2023 9 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. 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: B.A.No.3748/2023 10 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 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799], _**Union**_ . _**of India v. Jitentra 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 B.A.No.3748/2023 11 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. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, the petitioner cannot be released on bail since he is a habitual offender involved in eighteen crimes. Further, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, this application for regular bail at the instance of the petitioner must fail. B.A.No.3748/2023 12 Hence this petition stands dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.3748/2023 13 ## **`APPENDIX OF BAIL APPL. 3748/2023`** ``` PETITIONER ANNEXURES Annexure 1A CERTIFIED COPY OF THE ORDER IN CRL.MP 324/2023 OF THE SPECIAL JUDGE NDPS VADAKARA DATED 26.04.2023. Annexure 2A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER'S FRIEND TO THE STATE POLICE CHIEF. ```