Muhad Gihad K. P v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946** **BAIL APPL. NO. 2239 OF 2024** **CRIME NO.7/2024 OF Mananthavady Police Station, Wayanad** **AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.109 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KALPETTA PETITIONER/S:** **MUHAD GIHAD K. P, AGED 28 YEARS S/O MUHAMMAD ALI,KUTTIYAMPOKKIL HOUSE POOKOTTARP.O.,MELANGADI,MANJERI, MALAPPURAM., PIN - 676517** ## **BY ADV C.DINESH** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNKULAM, PIN - 682031 2 SUB INSPECTOR OF POLICE, MANANTHAVADY POLICE STATION,WAYANAD DISTRICT, PIN - 670645** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2239 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1[st] accused in Crime No.7/2024 of the Mananthavady Police Station, Wayanad, registered against the accused, for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short, 'Act'). The petitioner was arrested on 02.01.2024. 2. The essence of the prosecution case is that: on 02.01.2024, at around 7.20 hours, the accused 1 and 2 were found in possession of 51.64 grams of MDMA which was stored in a traveling bag of the 1[st] accused. The accused were arrested then and there at the spot with the contraband. Thus, the accused have committed the above offences. 3. Heard; Sri. C.Dinesh, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik the learned Special Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations BAIL APPL. NO. 2239 OF 2024 3 leveled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the case. In any given case, the petitioner has been in judicial custody since 02.01.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Detecting Officer has filed a bail objection report, inter alia, contending that the petitioner was found in conscious possession of 51.64 grams of MDMA which is of a commercial quantity. Moreover, it is found that the petitioner is also an accused in Crime No.1281/2023 of the Malappuram Police Station for committing an offence under the Act. Likewise, the 2[nd] accused is also involved in two crimes of the Chavakkad and Kadampuzha Police Station. There are incriminating materials to establish the petitioner's involvement in the case. Moreover, since the contraband involved is of a commercial quantity, the rigour BAIL APPL. NO. 2239 OF 2024 4 under Section 37 of the Act applies to the case. Furthermore, the petitioner is a person with criminal antecedents. Therefore, the petitioner does not satisfy the two limbs under Section 37 of the Act. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner and the 2[nd] accused is that they were found in conscious possession of 51.64 grams of MDMA. They were arrested with the contraband then and there at the spot. As per the specification under the NDPS Act, 51.64 grams of MDMA falls under the category of commercial quantity. Likewise, the bail objection report shows that the petitioner is also an accused in Crime No.1281/2023 of the Malappuram Police Station for committing a similar offence. 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 BAIL APPL. NO. 2239 OF 2024 5 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. 9. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme BAIL APPL. NO. 2239 OF 2024 6 ## 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 drugtrafficking 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 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 BAIL APPL. NO. 2239 OF 2024 7 ## 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. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, the materials placed on record and on comprehending the seriousness, gravity, and nature of the offences alleged against petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband is involved in the case and that the petitioner has criminal antecedents, I am convinced that there are no reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely BAIL APPL. NO. 2239 OF 2024 8 to commit a similar offence, if he is enlarged on bail. The petitioner has not made out reasonable grounds to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** Rkc/22.05.24 BAIL APPL. NO. 2239 OF 2024 9 ## **APPENDIX OF BAIL APPL. 2239/2024** ## **PETITIONER ANNEXURES** **Annexure 1** **COPY OF THE ORDER IN CRL. MC NO. 109 OF 2024 DATED 19-02-2024**