Muhammed Harris and Ibrahim Bathisha v. State of Kerala and Manjeshwar Police Station, Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945** ## **BAIL APPL. NO. 1030 OF 2024** **CRIME NO.405/2023 OF MANJESWAR POLICE STATION, KASARGOD** **AGAINST THE ORDER/JUDGMENT CR 975/2023 OF ADDITIONAL DISTRICT COURT &** **SESSIONS COURT - III, KASARAGOD / III ADDITIONAL MACT, KASARAGODE** ## **PETITIONERS/ACCUSED:** - **1 MUHAMMED HARRIS, AGED 30 YEARS S/O MUHAMMED,RESIDING AT RAHMATH RABIYA MANZIL PACHAMBALA, KAYYAR VILLAGE, MANJESHWAR TALUK, KASARAGOD, PIN - 671322** - **2 IBRAHIM BATHISHA, AGED 30 YEARS S/O MUHAMMED,R/AT PACHAMBALLA HOUSE,ICHILANGOD,KUBANOOR VILLAGE,KASARAGOD, PIN - 671322** **BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP ABIN BENNY ANJU R S. K C MOHAMED RASHID BIJITHA B. BOSE** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 STATION HOUSE OFFICER, MANJESHWAR POLICE STATION, KASARAGOD DISTRICT, PIN - 671323** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1030 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.405/2023 of the Manjeshwar Police Station, Kasargod, registered against the accused (two in number) for allegedly committing the offences punishable under Section 8(c), 22(c), 29, 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioners were arrested on 15.05.2023. 2. The essence of the prosecution case is that: on 14.05.2023 at around 18.45 hours, the accused 1 & 2 were found in possession and transporting 59.850 gms of MDMA for the purpose of sale in a motor car bearing Reg.No.KL 14 P 3787. The petitioners were arrested then and there at the spot with the contraband article. As the contraband is of the commercial quantity, the accused have committed the above offences. **BAIL APPL.NO.1030 OF 2024** **3** 3. Heard; Sri.P.V.Anoop, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation leveled against them. They have been falsely implicated in the crime. The vehicle from which the contraband was seized does not belong to the petitioners. The actual owner of the vehicle has not been made as accused in the above crime. The petitioners are in judicial custody since 15.05.2023. The investigation in the case is practically complete and recovery has been effected and the final report has been laid. Therefore, the petitioners' further detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. He contended that notwithstanding the fact that the contraband has now turned out to be methamphetamine and not MDMA, still the contraband is of **BAIL APPL.NO.1030 OF 2024** **4** a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. If the petitioners are released on bail, there is every likelihood of them committing a similar offence. Hence, the application may be dismissed. 6. The prosecution allegation is that on 14.05.2023 the petitioners were found in possession of 59.850 grams of MDMA in a vehicle in which they were travelling together. The petitioners are alleged to have been arrested with the contraband article then and there at the spot. On a perusal fo the chemical analysis report dated 20.12.2023 issued by the Regional Forensic Science Laboratory, Kannur, it has turned out that the contraband is not MDMA, but methamphetamine. Yet the contraband article is 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 **BAIL APPL.NO.1030 OF 2024** **5** ## 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 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 **BAIL APPL.NO.1030 OF 2024** **6** 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 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 **BAIL APPL.NO.1030 OF 2024** **7** 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 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”. **BAIL APPL.NO.1030 OF 2024** **8** 12. After bestowing my anxious consideration to the fact, the materials placed on record, the rival submissions made across the Bar and also the law referred to in the afore cited decisions and on comprehending the nature, seriousness and gravity of the accusation leveled against the petitioners, 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 petitioners have not committed the offences alleged against them and that they are not likely to commit the offence of a similar nature, if they are 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/- **C.S.DIAS** **JUDGE** **shg**