Momine Anseline v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 BAIL APPL. NO. 1590 OF 2023** **CRIME NO.467/2022 OF WALAYAR POLICE STATION** ## **PETITIONER/ACCUSED NO.4:** **MOMINE ANSELINE AGED 32 YEARS, S/O KONDO, 52, PARK AVENUE, ORIEAGU UDI-STATION, ENUGU STATE,REPUBLIC OF NIGERIA BY ADVS. AMJATH A.R VINOD.R(K/860/1999)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, WALAYAR POLICE STATION, PALAKKAD P G MANU - SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 1590 of 2023 2 ## **ORDER** ## **Dated this the 6[th] day of March, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 4[th] accused in crime No.467/2022 of Walayar Police Station, where the prosecution alleges commission of offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act' for short). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials form part of the case diary and the report of the Investigating Officer, placed by the learned Public Prosecutor. 3. The prosecution case is that, at about 4.40 pm on 16.10.2022, the 1[st] accused in this crime was found in possession of 12.85 gram of MDMA near Walayar Toll Plaza. Thereafter, he was nabbed and the contraband was taken into custody. Later investigation revealed that, accused Nos. 2 to 5 were also involved in this crime. Accordingly, the prosecution alleges commission of the above offences. 4. While pressing for grant of bail to the petitioner, the B.A.No. 1590 of 2023 3 learned counsel for the petitioner vehemently argued that, 4[th] accused/petitioner herein is absolutely innocent and nothing recovered at his instance. He also pointed out that, the petitioner is a native of Nigeria reached India for study purpose, was nabbed by the Police on the basis of confession statement given by the other accused. The learned counsel for the petitioner pointed out, the custody of the petitioner from 10.11.2022 and the progress of investigation as grounds to canvas regular bail to the petitioner. He submitted further that, in the FIR, nothing stated as to the recovery of contraband from the 4[th] accused. 5. Whereas the learned Public Prosecutor zealously opposed grant of bail on the submission that, 166.5 gram of MDMA was seized from the possession of the 4[th] accused, when accused Nos. 4 and 5 were searched by the Police in connection with this crime. He also pointed out that, since commercial quantity of contraband was recovered this Court cannot grant bail without satisfying the twin conditions privided under Section 37 of the NDPS Act. 6. On perusal of the case records, _prima facie_ , it is well made out that, initially the 1[st] accused alone was nabbed along with commercial quantity of contraband and thereafter the other B.A.No. 1590 of 2023 4 accused including the petitioner were arrayed as accused in this crime. The specific case put up by the prosecution as could be read out from the recovery mahazar, pertaining to recovery of contraband from accused Nos. 4 and 5 is that, at the time of search of accused Nos. 4 and 5, 166.5 gram of MDMA was recovered from the 4[th] accused and the same was taken into custody. In fact, the recovery of contraband from accused Nos. 4 and 5 was on a subsequent date and not on the date of occurrence. Thus, initially recovery was effected on 16.10.2022 and the recovery of contraband from the possession of the present petitioner, who is a native of Nigeria, whose name was disclosed by the other accused with certainty, was on 10.11.2022. If so, there is no likelihood to have the name of the 4[th] accused or any reference in relation to him in the FIR. Therefore, the argument advanced by the learned counsel for the petitioner appears to be not convincing, rather without due application of mind. Whereas the available records would establish _prima facie_ that the petitioner was nabbed along with 166.5 gram of MDMA and his complicity is not merely based on confession statements of the other accused as argued by the learned counsel for the petitioner. Further, the submission made by the learned counsel for the B.A.No. 1590 of 2023 5 petitioner that, nothing recovered from his possession also is falsehood. 7. 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_ - _(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_ B.A.No. 1590 of 2023 6 _under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail._ 8. 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. 9. 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. 10. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called B.A.No. 1590 of 2023 7 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. 11. 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], _**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) B.A.No. 1590 of 2023 8 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 one reported in [2023 Crl.L J 799], _**Union of India v. Jitendra Giri**_ . 12. 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 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. 13. 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 B.A.No. 1590 of 2023 9 grant of bail, this Court must satisfy 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. 14. 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** SK