MUHAMMED MUSTHAFA v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 BAIL APPL. NO. 2621 OF 2024 ``` ``` CRIME NO.2/2023 OF KUMBALA EXCISE RANGE OFFICE, KASARGOD AGAINST THE ORDER/JUDGMENT DATED 04.03.2024 IN SC NO.446 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KASARAGOD / II ADDITIONAL MACT, KASARAGODE PETITIONER/ACCUSED: ``` ``` MUHAMMED MUSTHAFA, AGED 30 YEARS SON OF UMMER, SEETHI HAJI QUARTERS, MIYA PADAVU DESOM, MOODAMBAIL VILLAGE, MANJESHWAR TALUK, KASARAGOD DISTRICT, PIN - 671323 ``` ``` BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SMT.SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 2621 OF 2024 ``` 2 **Dated this the 23[rd] day of May, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused in Crime No.2/2023 of the Kumbala Excise Range Office, Kasargod, registered against the accused for allegedly committing the offences punishable under Sections 20(b) (ii) (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 30.01.2023. 2. The essence of the prosecution case is that: on 30.01.2023, at around 11 hours, the accused was found in possession of 30.040 kg of ganja, which was imported from the State of Andra Pradesh for sale. The contraband was seized from the house of the accused. ``` BAIL APPL. NO. 2621 OF 2024 ``` 3 The accused was arrested at the spot with the contraband. Thus, the accused has committed the above offences. 3. Heard; Sri.T.Madhu, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations 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 30.01.2023, the investigation in the case is complete and the complaint has been laid. Therefore, the petitioner’s further detention is unnecessary. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is involved in a case where the contraband is of a commercial quantity. Therefore, the rigour under ``` BAIL APPL. NO. 2621 OF 2024 ``` 4 Section 37 of the Act applies to the facts of the case. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the bail application may be dismissed. 6. The prosecution allegation against the petitioner is that he was found in possession of 30.040 kg of ganja. As per the specification under the Act the contraband is of a commercial quantity. Hence, the rigour under Section 37 of the Act applies to the facts of the case. 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 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 ``` BAIL APPL. NO. 2621 OF 2024 ``` 5 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 Court in **Union of India v. Shiv Shanker** ``` BAIL APPL. NO. 2621 OF 2024 ``` 6 ## **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. ``` BAIL APPL. NO. 2621 OF 2024 ``` 7 ## 12. 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”. 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 ``` BAIL APPL. NO. 2621 OF 2024 ``` 8 contraband involved in the case and the prima facie material that has been placed before this Court, and that the investigation in the case is only at a nascent stage, I am satisfied that there is no reasonable ground 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 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** rmm/23/5/2024