Mohammed Marzooq v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 ``` ## `BAIL APPL. NO. 9652 OF 2023` ``` CRIME NO.1029/2022 OF KASARAGOD POLICE STATION, KASARGOD AGAINST THE ORDER IN SC 313/2023 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD ``` ## `PETITIONER/1ST ACCUSED:` ``` MOHAMMED MARZOOQUE, AGED 28 YEARS SON OF FAROOQUE, MARZOOQUE MANZIL, ERIYAL, KUDLU VILLAGE AND P.O, KASARAGOD,, PIN - 671121 BY ADVS. I.V.PRAMOD SAIRA SOURAJ P. ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, PIN - 682031 ``` ``` BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. No.9652 of 2023 2 ## **Dated this the 12[th] day of January, 2024 O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), by the 1[st] accused in Crime No. No.1029/2022 of the Kasaragod Police Station, Kasaragod, registered against the accused (two in number) alleging them to have committed the offences under Sections 27(b) and 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘Act’). The petitioner was arrested on 26.12.2022. 2. The gist of the prosecution case is that: the 1[st] accused was found using Ganja cigarettes. On being apprehended, he confessed that he had purchased 40 grams of MDMA (Ecstasy pills) from the 2[nd] accused, and the same were kept in his room in Fort Inn Lodge, near Kasaragod Police Station. Accordingly, the investigation team recovered the contraband article from the said B.A. No.9652 of 2023 3 room. Thus, the accused have committed the above offences. 3. Heard; Sri. I.V. Pramod., the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. He has no criminal antecedents. The petitioner has been languishing in jail since 26.12.2022. The investigation of the case is complete. Therefore, the petitioner’s further detention is not necessary. The petitioner is ready to abide by any stringent condition that may be imposed by this Court. Hence, the bail application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. She submitted that in the Chemical Analysis conducted by the Regional Forensics Laboratory, Kannur, it was revealed that the contraband B.A. No.9652 of 2023 4 is MDMA. Thus, the contraband is of commercial quantity. Therefore, the rigour under Section 37 of the Act applies. There are materials to substantiate that the petitioner has committed the offences. Therefore, the application may be dismissed. 6. The prosecution case is that the accused was found in possession of 40 grams of MDMA, which is undoubtedly a commercial quantity. The petitioner was arrested on 26.12.2022. 7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving an offence under the Act. It is apposite 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— B.A. No.9652 of 2023 5 (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 subsection (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.” (highlighted) 8. A reading of the above provision indicates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and 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, an accused alleged to have committed an offence under the Act is entitled to be enlarged on bail not only subject to provisions under Sec.439 of the Code but also on satisfying the twin conditions contemplated under Sec.37 of the Act. B.A. No.9652 of 2023 6 9. The Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] has interpreted the expression ‘reasonable grounds’ under Section 37 of the Act in the following manner: “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 thus: “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 B.A. No.9652 of 2023 7 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. This Court reminisces the decision in **State of Kerala and others v. Rajesh and others** [(2020) 12 SCC 122], an appeal arising from a bail order passed by this Court granting bail to a person accused of an offence under the Act, wherein the Honourable Supreme Court went to hold as follows: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with B.A. No.9652 of 2023 8 the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 B.A. No.9652 of 2023 9 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act”. 12. In addition to the above precedents, 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 thus: B.A. No.9652 of 2023 10 “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. On a meticulous scrutiny of the factual matrix for the purpose of bail and the law referred to above, especially the law laid down in Shiv Shanker Kesari, Muhammed Nawaz Khan and Rajesh and others, considering the gravity of the accusation levelled against the petitioner, the potential severity of the punishment that can be imposed on him in the event of him being B.A. No.9652 of 2023 11 found guilty, and the prosecution’s concern regarding the element of flight risk, I am at this stage not satisfied that there are reasonable grounds to believe that the petitioner is not guilty of the offence alleged against him and there is no likelihood of him committing any offence if released on bail. I do not find any compelling or cogent grounds to dilute the rigour under Section 37 of the Act. The application lacks merits and is only to be dismissed. Resultantly, this application is dismissed. Sd/- **C.S.DIAS, JUDGE** mtk/12.01.2024 B.A. No.9652 of 2023 12 ## `APPENDIX OF BAIL APPL. 9652/2023` ``` PETITIONER ANNEXURES ``` ``` Annexure-A1A TRUE COPY OF THE FIR OF 1029/2022 DATED 26/12/2022 OF KASARAGOD POLICE STATION, KASARAGOD DISTRICT ``` ``` Annexure-A2A TRUE COPY OF THE ORDER IN CRL. M.P. NO. 3582/2023 IN SC NO.313/2013 DATED 26/6/2023 OF THE SESSIONS COURT, KASARAGOD ```