KILLO SUBBA RAO @ SUBBU v. STATE OF KERALA

1 Bail Application No. 493 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 BAIL APPL. NO. 493 OF 2024 ``` ``` CRIME NO.245/2022 OF Koraty Police Station, Thrissur ``` ## **`PETITIONER/S:`** ``` KILLO SUBBA RAO @ SUBBU AGED 31 YEARS SON OF RAMANNA, CHITTIVALASA VILAGE, RANGASEELA PANCHAYATH, HUKUMPETA MANDAL, VISAKAPATTANAM, ANDHRA PRADESH., PIN - 531151 BY ADV NIREESH MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S., SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 493 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 493 of 2024** **----------------------------------Dated this the 30[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the ninth accused in crime No.245/2022 of the Koratty Police Station, Thrissur, registered against the accused (nine in number), for allegedly committing the offences punishable under Secs.20(b) (ii) C, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested on 3.3.2023. 2. The gist of the prosecution case is that: around 10.45 hours on 2.3.2022, the accused 2 and 3 were found driving cars bearing registration Nos. KL 8/Y 2626 and TN 3 Bail Application No. 493 of 2024 32/U 4199, both owned by the first accused. When the cars were intercepted, 1.638 Kg of Hashish oil was seized from the first vehicle and 8.992 Kg of Hashish oil was seized from the second vehicle. The accused 4 to 8 had provided financial support to procure the contraband article. The ninth accused, who hails from the State of Andhra Pradesh, had aided the accused 1 to 8 to procure the said contraband article. Thus, the accused have committed the above offences. 3. Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations 4 Bail Application No. 493 of 2024 levelled against him. There is nothing on record to establish that the petitioner had any financial transaction with the accused. The petitioner has been in judicial custody since 3.3.2023, which is nearly a year. The investigation in the case is complete and 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 strenuously opposed the application. She contended that the petitioner is the kingpin of the crime. It was the petitioner who had assisted the accused to procure the contraband from the State of Andhra Pradesh. The contraband that was seized is of a commercial quantity. The petitioner is a person with criminal antecedents and is involved in similar crimes. 5 Bail Application No. 493 of 2024 The rigour under Sec.37 of the Act applies to the facts and circumstances of the case. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused 2 and 3 were found in possession of 1.638 kg and 8.992 kg of hashish oil, respectively. The vehicles that were used for transporting the contraband belong to the first accused. It is further alleged that the financial assistance to procure the contraband was provided by the accused 4 to 8 and the ninth accused/petitioner assisted the accused 1 to 8 to procure the contraband from the State of Andhra Pradesh. Indisputably, going by the prosecution case, the contraband article is of a commercial quantity. 6 Bail Application No. 493 of 2024 ## 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 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 Bail Application No. 493 of 2024 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 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 8 Bail Application No. 493 of 2024 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 **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 drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. ## 11. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also 9 Bail Application No. 493 of 2024 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 bail applications by holding as follows: “9. …...... 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.” ## 13. After bestowing my anxious consideration to the materials placed on record, taking into account the nature, seriousness and gravity of the accusations leveled against 10 Bail Application No. 493 of 2024 the petitioner, that the petitioner has criminal antecedents 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 offence alleged against him that he is not likely to commit a similar offence, if he is enlarged on bail. Therefore, I hold 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/- sks/30.1.2024 **C.S.DIAS, JUDGE**