Muhammed Ajmal C v. State of Kerala and Excise Commissioner, Kalikavu Range, Malappuram District

1 BA No.9291 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 BAIL APPL. NO. 9291 OF 2023 ``` ``` CRIME NO.`10/2023 OF Kalikavu Excise Range Office, Malappuram PETITIONER/S: ``` ``` MUHAMMED AJMAL C, AGED 29 YEARS S/O SAIFUDHEEN, CHAPPATHU HOUSE, CHOKKADU P.O. NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN - 679322 ``` ``` BY ADVS. K.MOHAMMED RAFEEQ BIBIN MATHEW P.M.MATHEW AMARNATH R LAL SANALDEV E.P. VISHNUMAYA ANANDAN SONYMON ANTONY ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031 ``` ``` 2EXCISE COMMISSIONER, EXCISE RANGE KALIKAVU, MALAPPURAM DISTRICT, PIN - 679328 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.9291 of 2023 ## **C.S.DIAS,J** ## **======================** ## **BA No.9291 of 2023** ## **-----------------------------------** ## **Dated this the 26[th] day of February, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.10/2023 of the Kalikavu Excise Range, Malappuram, registered against the accused (two in number), for allegedly committing the offences punishable under Section 22(c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioner was arrested on 19.5.2023. 2. The crux of the prosecution case is that: on 19.5.2023 at around 5.15 p.m, the first accused was found in possession of an electronic weighing machine and 15.67 grams of MDMA while he was walking near his house. The 3 BA No.9291 of 2023 Excise Inspector arrested the first accused with the contraband article. It is further alleged that the first accused confessed that the contraband article was given to him by the second accused and he was in possession of additional quantity of contraband article. Consequently, the Investigating Officer proceeded to the house of the second accused and seized 97 grams of MDMA from his possession. Thus, the accused has committed the above offences. 3. Heard; Sri.K.Mohammed Rafeeq, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is absolutely innocent of the accusation levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner was found in possession of contraband article. It is solely on the basis of the confession statement 4 BA No.9291 of 2023 allegedly made by the first accused that the petitioner has been implicated in the crime. The petitioner was arrested on 19.5.2023. The investigation in the case is complete and final report has been laid. Moreover, it is turned out that the contraband article is ‘Methamphetamine’ and not ‘MDMA’. Therefore, the final report is also defective. The petitioner has been languishing in jail since 19.5.2023. The petitioner’s further detention is not necessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner and the first accused were found in possession of a commercial quantity of contraband article. Therefore, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. The contraband article was seized from the possession of the petitioner in compliance with Sec.42 and 50 of the Act. If the 5 BA No.9291 of 2023 petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. The crux of the prosecution case is that the petitioner was found in possession of 97 grams of MDMA, which admittedly of a commercial quantity. Even though the contraband article is ‘Methamphetamine’ and not ‘MDMA’, the same is also of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies. **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 6 BA No.9291 of 2023 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. 7 BA No.9291 of 2023 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”. 10. It is also well-settled that in addition to applying the rigour under 8 BA No.9291 of 2023 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. ## 11. 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”. ## After bestowing my anxious consideration to the fact, the materials placed on record, the rival submissions made 9 BA No.9291 of 2023 across the Bar and also the law referred to in the afore cited decisions, and on comprehending the nature, seriousness and gravity, the accusation levelled against the petitioner, that the investigation in the case is in progress and that the contraband is of a commercial quantity, I do not find any reasonable ground to hold that the petitioner has not committed the offences alleged against him and that he is not likely to commit the offence of a similar nature, 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 rejected. Resultantly, the application is dismissed. **sd/-** Sks/ 26.2.2024 **C.S.DIAS, JUDGE**