Muhammed Ashique K.G v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1763 OF 2024 ``` ``` CRIME NO.900/2023 OF Palluruthy Police Station, Ernakulam ``` ## **`PETITIONER/S:`** ``` MUHAMMED ASHIQUE K.G AGED 31 YEARS S/O. AHAMMED KABEER, KOTTAKUNNA HOUSE, MANNUR WEST, PALAKKAD DISTRICT, PIN - 678642 ``` ``` BY ADV L.RAJESH NARAYAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY STATION HOUSE OFFICER, PALLURUTHY POLICE STATION, ERNAKULAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 1763 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No. 1763 of 2024 -----------------------------------** ## **Dated this the 12[th] day of March, 2024** ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure for an order of pre-arrest bail. 2. The petitioner is the seventh accused in Crime No.900/2023 of the Palluruthy Police Station, registered against the accused, for allegedly committing the offences punishable under Sections 20 (b) (ii) (C), 8(c), 25, 27(A) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act (for short, the Act). 3. The essence of the prosecution case is that: the accused 1 to 5 entered into a criminal conspiracy to transport narcotic drugs from Orissa to Kerala for the purpose of sale. Accordingly, the first accused transferred an amount of Rs.9.5/- Lakh to the bank account of the second accused. The second accused with the help and 3 Bail Application No. 1763 of 2024 connivance of the accused 4 to 9 purchased 200 Kgs of ganja from accused 11 and 12, who are natives of Orissa. The accused 4 to 9 transported the said contraband articles in a lorry belonging to the thirteenth accused. The accused stored the contraband article and engaged in its sale. On getting secret information, the Investigation Officer seized the contraband article. Thus, the accused have committed the above offences. 4. Heard; Sri.Rajesh Naryanan, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner’s active involvement in the crime. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 4 Bail Application No. 1763 of 2024 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the petitioner’s active involvement in the crime. Moreover, the petitioner is a person with criminal antecedents since he is involved in crime No.34/2023 of the Thusara Police Station in the State of Orissa, for allegedly committing a similar offence under the Act. The very fact that the petitioner is involved in a case of similar nature dis-entitles him to an order of pre-arrest bail in view of the second limb to Sec.37 of the Act. Therefore, the application is only liable to be dismissed. 7. The crux of the prosecution allegation is that the accused had hatched a conspiracy and in furtherance of their common intention transported commercial quantity of contraband article from the State of Orissa and indulged in its sale. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. Even assuming that 5 Bail Application No. 1763 of 2024 there is no material to link the petitioner with the present crime, it is well established that the two limbs under Sec.37 of the Act have to be read conjunctively. The fact that the petitioner is involved in a crime for allegedly committing a similar offence dis-entitles him to bail as he is likely to commit a similar offence. [Read **Dheeraj Kumar Shukla vs. The State of Uttar Pradesh** (2023 SCC Online SC 918)]. 8. 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 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 6 Bail Application No. 1763 of 2024 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. 9. 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. 10. 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 Bail Application No. 1763 of 2024 “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”. ## 11. 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”. 12. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also 8 Bail Application No. 1763 of 2024 bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 13. 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”. 14. On a meticulous scrutiny of the factual matrix, the law referred to above, and taking into account the nature, gravity and seriousness of the accusations leveled 9 Bail Application No. 1763 of 2024 against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the commercial quantity of the contraband involved in the case, the petitioner has criminal antecedents, and the petitioner’s custodial interrogation is necessary, I am at this stage satisfied 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 to commit a similar offence, if enlarged on bail, so as to dilute the rigour under Sec.37 of the Act. Resultantly, the application is dismissed. **sd/-** **C.S.DIAS, JUDGE** Sks/12.3.2024