K.A. Fanshas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 BAIL APPL. NO. 9260 OF 2022** **AGAINST THE ORDER/JUDGMENTCRMP 793/2022 OF SPECIAL COURT** **(NDPS ACT CASES), VADAKARA CRIME NO.544 OF 2022 OF PANTHEERANKAVU POLICE STATION,** ## **KOZHIKODE** ## **PETITIONER/ACCUSED NO.3:** K.A. FANSHAS, AGED 24 YEARS S/O.ASHRAF ALI, KEEZHALATHKANDI HOUSE, ATHOLI.P.O. KOZHIKODE., PIN - 673315 BY ADV K.V.SREE VINAYAKAN ## **RESPONDENT/STATE:** STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, PANTHEERANKAVE POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. P G MANU (SENIOR PUBLIC PROSECUTOR) THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15.02.2023, THE COURT ON 03.03.2023 DELIVERED THE FOLLOWING: B.A.No.9260 of 2022 ..2.. ## **A.BADHARUDEEN, J.** ## **-------------------------------------------------------B.A.No.9260 of 2022** **-------------------------------------------------------Dated this the 3[rd] day of March, 2023** ## **O R D E R** This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner who is the third accused in Crime No.544 of 2022 of Pantheerankave Police Station, Kozhikode. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. 3. I have perused the case diary as such produced by the learned Public Prosecutor. 4. The prosecution case is that, at 9.30 p.m. B.A.No.9260 of 2022 ..3.. on 15.10.2022, accused Nos.1 to 3 were found in possession of 31.130 gram MDMA, 0.450 gram LSD stamps, 0.780 gram of MDMA Ecstasy Pills, 2.980 gram Hashish oil and 11.050 gram ganja at room No.366/L of Oceanic Apartment, Athani junction. Accordingly, they were nabbed and contraband taken into custody. On this premise, the prosecution alleges commission of offences punishable under Sections 8 r/w 20(b)(II)(A), 22(b) and 22(c) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act. 5. The learned counsel for the petitioner would submit that the petitioner is innocent and he was forced to stay along with his friends on the date of detection of the crime, since the petitioner, who is a resident of Atholi, a place 27 km away from Kozhikode could not reach Atholi after attending class in Armstech B.A.No.9260 of 2022 ..4.. Institute, Palarivattom, Ernakulam, since he failed to get his bus towards Atholi in the late night. It is argued further that nothing recovered either from the person or from the bag of the petitioner and therefore, the petitioner is absolutely innocent and as such, the bar under Section 37 of the Narcotic Drugs and Psychotropic Substances Act has no application in the present case. Therefore, the petitioner deserves bail. 6. Whereas it is submitted by the learned Public Prosecutor that, at the time of recovery of huge quantity of contraband, the petitioner was also present being a person in possession of the huge quantity of contraband. Therefore, the bar under Section 37 would apply and the petitioner cannot be released on bail. It is submitted further that the petitioner herein and all other accused persons are friends and they have been jointly B.A.No.9260 of 2022 ..5.. doing drug sale and consumption. Further the place of the petitioner, Atholi is a prime spot in KozhikodePerambra State Highway and there is easy access to the said place from Kozhikode at any time during night. Therefore, the contention raised by the petitioner that he was forced to be at the apartment when recovery was effected cannot be accepted. 7. In this matter, the prosecution case is that the contraband which would come to 31.130 gram MDMA, 0.450 gram LSD stamps, 0.780 gram of MDMA Ecstasy Pills, 2.980 gram Hashish oil and 11.050 gram ganja were recovered from the apartment and at the time of recovery, the petitioner and other accused were present. Though it is argued by the learned counsel for the petitioner that the recovery was from the separate bags possessed by the first and second accused, it could B.A.No.9260 of 2022 ..6.. not be held at this stage that nothing recovered from the physical possession of the petitioner and the petitioner's complicity is less than that of the first and second accused. On reading the recovery mahazar along with the confession statements, the complicity of the petitioner is on par with the other accused could be seen prima facie. The same would suggest that the petitioner is a regular visitor at the apartment for consuming contraband. Justification offered by the learned counsel for the petitioner that the petitioner could not reach Atholi and he therefore was forced to stay at the apartment on the day of detection and he has no connection with the contraband are matters which cannot be accepted at this stage. Well the petitioner can raise these contentions during trial. 8. On perusal of the case at hand, the B.A.No.9260 of 2022 ..7.. prosecution allegation as to commission of offences alleged herein is prima facie made out and the contraband is commercial quantity. 9. 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.--_ - _(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_ B.A.No.9260 of 2022 ..8.. _(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._ 10. 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. B.A.No.9260 of 2022 ..9.. 11. 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. 12. 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 B.A.No.9260 of 2022 ..10.. 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. 13. 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], B.A.No.9260 of 2022 ..11.. **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]. The latest decision on this point is [2023 Cri.LJ 799], **Union of India v. Jitentra Giri.** 14. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the B.A.No.9260 of 2022 ..12.. 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. 15. 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 B.A.No.9260 of 2022 ..13.. that there are 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. 16. 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** rkj B.A.No.9260 of 2022 ..14.. ## **APPENDIX OF BAIL APPL. 9260/2022** PETITIONER'S ANNEXURES Annexure A1 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.544/2022OF PANTHEERANKAVE POLICE STATION, KOZHIKODE DISTRICT DATED 15-10-2022 Annexure A2 TRUE COPY OF THE BONAFIDES CERTIFICATE DATED 18-10-2022 ISSUED FROM ARMSTECH INSTITUTE, PALARIVATTOM, ERNAKULAM Annexure A3 TRUE COPY OF THE WEDDING INVITATION CARD OF THE PETITIONER'S FRIEND Annexure A4 A TRUE COPY OF THE ORDER DATED 07-112022 PASSED IN CRL.M.P. NO. 793/2022 BEFORE THE COURT OF SPECIAL JUDGE, (NDPS ACT CASES) VATAKARA