MUHAMMED ASARUDHEEN and MUHAMMED ASKAR v. STATE OF KERALA

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE A. BADHARUDEEN` ``` WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 ``` ## `BAIL APPL. NO. 9574 OF 2022` ``` CRIME NO.23/2022 OF EXCISE RANGE OFFICE, PAPPINISSERY IN KANNUR DISTRICT REGISTERED FOR OFFENCES PUNISHABLE UNDER SECTION 22(C) NDPS ACT CASES AGAINST THE ORDER DATED 19.11.2022 IN CRMP 845/2022, SPECIAL COURT (NDSP ``` ## `ACT CASES), VADAKARA` ## `PETITIONERS/ACCUSED NO.1 & 2:` ``` 1MUHAMMED ASARUDHEEN AGED 22 YEARS S/O ABDUL SHUKKUR, AYISHAMANZIL, KALLIASSERY, KANNUR TALUK, KANNUR DISTRICT ., PIN - 670001 2MUHAMMED ASKAR AGED 25 YEARS S/O ABDUL SHUKKUR, AYISHA MANZIL, KALLIASSERY AMSOM, DESOM, KANNUR TALUK,KANNUR DISTRICT, PIN - 670001 BY ADVS. DEEPAK RAJ C.P.ROOPA(K/000134/2015) ``` ## `RESPONDENT/STATE:` ``` 1STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 BY ADV.P.G.MANU, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No.9574 of 2022 ``` 2 ## **A. BADHARUDEEN, J. -----------------------------------B.A. No.9574 of 2022 -----------------------------------Dated this the 22[nd] day of March, 2023** ## **ORDER** This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioners are the accused Nos. 1 and 2 in crime No.23/2022 of Pappinesseri Excise Range, Kannur. 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor in detail. Perused the pages of the case diary and the detailed report including the Mahazar placed by the learned Public Prosecutor. 3. In this case, the prosecution allegation is that, accused Nos. 1 and 2 possessed 100 gms of Methamphetamine in a car bearing registration No. KL-66B-3392 and also kept 163 gms of Methamphetamine by the first accused and 100 gms of ``` B.A. No.9574 of 2022 ``` 3 Methamphetamine by the second accused. As a sequel to red handed recovery of contraband, the accused were arrested and crime alleging commission of offence punishable under Section 22(c) of NDPS Act was registered. 4. The learned counsel for the petitioners argued that the petitioners are brothers and who are the pillars of two families, trailing to survive. It is also submitted that, in this case, the investigation officer failed to comply with the mandate of Section 50 of the NDPS Act while conducting body search. It is further submitted that the petitioners have been in custody from 27.07.2022 and final report already filed. Therefore, the petitioners may be released on bail. 5. Whereas, it is submitted by the learned Public Prosecutor that even counting the 100 gms of Methamphetamine recovered from the car after complying the mandate of Section 42(1) of the NDPS Act, the same by itself is commercial quantity and ``` B.A. No.9574 of 2022 ``` 4 therefore if at all there is failure from the part of detecting officer in complying Section 50 of the NDPS Act, the same shall not be a ground to give clean chit to the petitioners, that too, at the crime stage. 6. On perusal of the materials available, red handed recovery of 100 gms of Methamphetamine from the car of the petitioners, while transporting the same could be gathered and in the Mahazar, the investigating officer recorded compliance of Section 42(1) of the NDPS Act on asserting that a prior information was received and the same was recorded. However, on perusal of the Mahazar as argued by the learned counsel for the petitioners, failure on the part of the investigating officer in complying the statutory mandate under Section 50 of the NDSP Act could be gathered. More so, there is nothing in the Mahazar to see that the investigating officer opted the mode of search provided under Section 50(5) and 50(6) of the NDPS Act. 7. Though prima facie, non compliance of Section ``` B.A. No.9574 of 2022 ``` 5 50 could be gathered, the recovery from the possession of the petitioners that would come to 100 gms of Methamphetamine is found to be legal. Therefore, noncompliance of Section 50 of the NDPS Act could not make the entire prosecution case as bad. 8. The non-compliance of Section 50 is a matter that can be considered by the trial court as held by the Apex Court in the decision reported in [2021 (10) SCC 100], **Union of India through NCB, Lucknow v. Md. Navaz Khan** . It was held therein that at the time of grant of bail, the question as regards to compliance or non-compliance of Section 42 of the Act is not strictly required to be gone into, as the same is a matter, which would best to be left adjudicated at the time of trial. According to the learned Public Prosecutor, noncompliance regarding Section 50 of the NDPS Act shall be relegated to the trial court to decide the same on merits during evidence and merely because of noncompliance of Section 42(1) of the NDPS Act, the rigour ``` B.A. No.9574 of 2022 ``` 6 under Section 37 of the NDPS Act, cannot either be diluted or to be given a go-by to grant bail since compliance of Section 37 is mandatory in nature as held by the Apex Court in a catena of decisions. 9. In Md. Nawas Khan’s case (supra), the Apex Court held as under: “29. In the complaint that was filed on 16 October 2019 it is alleged that at about 1.00 hours on 26 March 2019, information was received that between 1500-1700 hours on the same day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. Therefore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial.” 10. Since commercial quantity of contraband was involved, the rigour under Section 37 of the NDPS Act would squarely apply in the facts of this case. 11. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. ``` B.A. No.9574 of 2022 ``` 7 ## 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 under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 12. 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 ``` B.A. No.9574 of 2022 ``` 8 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. 13. 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. 14. It was further held that the Court while considering the application for bail with reference to ``` B.A. No.9574 of 2022 ``` 9 Section 37 of the Act is not called 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. 15. 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: ``` B.A. No.9574 of 2022 ``` 10 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) 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** . 16. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the ``` B.A. No.9574 of 2022 ``` 11 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. 17. 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 grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence ``` B.A. No.9574 of 2022 ``` 12 and he will not likely to commit any offence while on bail. 18. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioners are not liable to be released on bail. Accordingly, this bail application stands dismissed. **Sd/-** ## **A. BADHARUDEEN** **JUDGE** SKP/22-03 ``` B.A. No.9574 of 2022 ``` 13 ## `APPENDIX OF BAIL APPL. 9574/2022` ``` PETITIONERS’ ANNEXURES: ANNEXURE A1TRUE COPY OF THE ORDER IN C.M.P. NO. 845/2022 DATED 19.11.2022 PASSED BY THE COURT OF THE SPECIAL JUDGE (N.D.P.S) ACT CASES, VATAKARA ``` ``` RESPONDENTS' EXHIBITS:NIL ``` ``` TRUE COPY ``` ``` P.A. TO JUDGE ```