Lishoy and Muhammed Sharin v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 BAIL APPL. NO. 776 OF 2024 ``` ``` CRIME NO.874/2023 OF Chalissery Police Station, Palakkad ``` ``` 1LISHOY AGED 27 YEARS R/O MANDUMPAL HOUSE, ALTHARA POST, PERUMBILAVU, THRISSUR., PIN - 680519 2MUHAMMED SHARIN AGED 24 YEARS R/O KOOTTUMADATHIL HOUSE, AALIKARA CHALISSERY, PALAKKAD., PIN - 679536 BY ADVS. NAVANEETH.N.NATH GAUTHAM KRISHNA E.J. ABHIRAMI S. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 776 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No. 776 of 2024 -----------------------------------** ## **Dated this the 12[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 1 and 2 in Crime No.874/2023 of the Chalissery Police Station, Palakkad, registered against them, for allegedly committing the offences punishable under Sections 22(C) and 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioners were arrested on 15.10.2023. 2. The gist of the prosecution case is that: on 14.10.2023 around 15.25 hours, the accused 1 and 2 were found in possession of 63.66 grams of MDMA and 19.1 grams of ganja in a building bearing No. VIII/382 of Chalissery Grama Panchayat. Thus, the accused have committed the above offences. 3 Bail Application No. 776 of 2024 3. Heard; Sri.Navaneeth N.Nath, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The petitioners are law abiding citizens and the sole breadwinners of their family. The petitioners have been in judicial custody since 15.10.2023, which is now 120 days. The investigation in the case is practically complete and the recovery has been effected. Therefore, the petitioners’ continued detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioners have criminal antecedents. The first petitioner is involved in thirteen cases and the second petitioner is involved in two cases. The investigation in the case is in progress and the contraband seized is of a commercial quantity. Therefore, the rigour under Sec.37 of the Act applies to the facts of 4 Bail Application No. 776 of 2024 the case. If the petitioners are let off on bail, there is every likelihood of them committing a similar offence. Hence, the bail application may be dismissed. 6. The prosecution case is that the accused 1 and 2 were found in possession of 63.66 grams of MDMA and 19.1 grams of ganja. Indisputably, the contraband of MDMA is of a commercial quantity. Therefore, the rigour under Sec.37 of the Act applies to the facts of the case. Moreover, it is evident from the materials placed on record that the first petitioner is a history sheeter and is involved in thirteen cases of which one case is under the NDPS Act . Likewise, the second petitioner is involved in two other cases of the years 2016 and 2021 for allegedly committing the offences under the Indian Penal Code. 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),—_ 5 Bail Application No. 776 of 2024 _(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.”_ 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. 6 Bail Application No. 776 of 2024 ## 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 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 7 Bail Application No. 776 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.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”._ ## 13. Similarly, in _**Kalyan Chandra Sarkar v. Rajesh**_ ## _**Ranjan,** [(2004) 7 SCC 528]_ , the Honourable Supreme Court observed thus: 8 Bail Application No. 776 of 2024 _“11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:_ _(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence._ _(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant._ _(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338)”._ 14. On a scrutiny of the facts, materials placed on record and the rival submissions made across the Bar and the law referred to above and taking into account the nature, seriousness and gravity of the accusations leveled against the petitioners, that the petitionrs have criminal antecedents, that the investigation in the case is in progress and that the contraband article is of a commercial quantity, I do not find any reasonable ground to hold that the petitioners are not guilty of the offences 9 Bail Application No. 776 of 2024 alleged against them that they are not likely to commit similar offences, if they are 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/- **C.S.DIAS JUDGE** sks/12.2.2024 10 Bail Application No. 776 of 2024