Muhammed Naseer M @ Manu Joy and Sakkariya v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 BAIL APPL. NO. 5975 OF 2021** **AGAINST THE ORDER IN SC 810/2021 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI** **CRIME NO. 67 OF 2021 OF PANDIKKAD POLICE STATION** ## **PETITIONERS/ACCUSED 1 AND 2:** 1 MUHAMMED NASEER M @ MANU JOY AGED 28 YEARS S/O. JOY, MAMBADAN HOUSE, VETTIKATTIRI (PO), PANDIKKAD, MALAPPURAM, PIN-676 521. 2 SAKKARIYA AGED 36 YEARS S/O. KUNCHALAVI, KANAKKOTTIL HOUSE, PANDIKKAD,MALAPPURAM, PIN-676521. BY ADVS. P.K.VARGHESE K.R.ARUN KRISHNAN SANJANA RACHEL JOSE ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. ## **OTHER PRESENT:** P.G.MANU- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON 04.01.2022 PASSED THE FOLLOWING: B.A. 5975/2021 2 ## **ORDER** Application for regular bail. 2. The petitioners who are arraigned as accused Nos.1 and 2 in Crime No.67 of 2021 of Pandikkad Police Station registered for the offences punishable under Sections 22(c) and 29(i) of the Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS’ Act) have moved this application for their release on bail. 3. The FIR and connected records would reveal that this crime has been registered against them for having found in possession of 19.85 grams of MDMA concealed in a car bearing No.KO 40 3456 near Pandikkad High School ground for the purpose of sale. Thus the case has been registered against them and now it is pending as S.C. No.810 of 2021 before the Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri. 4. The petitioners have been in custody since 18.03.2021. 5. Heard the learned counsel for the petitioners as well the learned Public Prosecutor. B.A. 5975/2021 3 6. The learned counsel for the petitioners would submit that they are falsely implicated in the case and now the investigation of the case is over and they are undergoing unnecessary incarceration. It is also pointed out that the second petitioner has very serious problems which affects the vision of his right eye and his left eye was also partially damaged and he requires treatment in a Specialized hospital. The treatment is available only at Aravind Hospital, Coimbatore but that is impossible at present, as he is undergoing incarceration. 7. The learned Public Prosecutor has opposed the application mainly pointing out that as the quantity of contraband involved is commercial quantity, they are not entitled to be released on bail even though the investigation is over. 8. It is most significant to note that the quantity of the contraband involved is 19.85 grams of MDMA. It is true that investigation of the case is over and charge sheet has been submitted and now the case is pending for trial before the Special Court. As commercial quantity is involved granting of bail to the petitioners is subject to the limitation prescribed under Section 37 of the NDPS Act. B.A. 5975/2021 4 ## Section 37 of the NDPS Act reads as follows :- “37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974),- (a) every offfence 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 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]” 10. So as per Section 37 only if there are reasonable grounds to believe that the accused has not committed an offence he is entitled for bail. But at the same time he is also supposed to prove his case that he is not likely to commit any offence while on bail. 11. Interpreting the word 'reasonable grounds' the Apex Court in **Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798]** has 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 B.A. 5975/2021 5 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. 8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. “9. … It is often said that 'an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space.' The author of Words and Phrases has quoted from Nice & Schreiber, In re to give a plausible meaning for the said word. He says 'the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined.' It is not meant to be expedient or convenient but certainly something more than that.” 10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn of Greater Mumbai v. Kamla Mills Ltd) 11. The court while considering the application for bail with reference to 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.” B.A. 5975/2021 6 9. So, no doubt they are not entitled to be released on bail as they could not point out any reasonable grounds to substantiate their contention that they are innocent and if released on bail, they will not commit similar offences. 10. But it is significant to note that as the learned counsel for the petitioners has raised a contention that the second petitioner is suffering from very serious ailment to his eye which affects his vision a Medical Board was constituted as directed by this court for his examination. The copy of the report of the Medical Board has been submitted by the learned public prosecutor for perusal. The impression of the Medical Board after examination of him reads as follows :- “As the patient has uncontrolled post traumatic glaucoma not responding to maximum medical treatment producing functional and structural damage to the right eye he needs laser surgical procedure (cyclophotcoagulation) at the earliest. No active medical problems at present”. 11. The report indicates that though there is no active medical problems at present he requires laser surgical procedure . As the B.A. 5975/2021 7 Medical Board was constituted with experts attached to the Department of Ophthalmology, Government Medical College, Kozhikode, the report is accepted as such. According to the learned counsel for the petitioners that treatment is available only at Aravind Hospital, Coimbatore. As he is undergoing incarceration, the State has to bear the expenses for providing adequate treatment to him. It is the common knowledge that normally all treatments are available in the Medical Colleges at Kerala. So at this stage, without sufficient data, it is not possible to accept the submission made by the learned counsel for the petitioners that treatment for him is available only at Aravind Hospital, Coimbatore. Hence, on that ground the bail application can not be considered as requested by the learned counsel for the petitioners. 12. For the reasons stated above, this bail application is only to be dismissed. But it is made clear that the second petitioner shall be provided with necessary treatment, at the earliest in the Govt. Medical College Hospital, Kozhikode, if sufficient facilities are available to impart treatment to him. The Superintendent of jail where he is B.A. 5975/2021 8 incarcerated, shall file a report before this Court after ascertaining the same with the Head of the department of Ophthalmology, within 10 days from today. The Superintendent of jail is at liberty to produce him before the Medical college, Kozhikode for treatment and report the same before this court. The Superintendent of Govt. Medical College Hospital, Kozhikode, shall make all arrangements to provide treatment to him. With this observation this application stands dismissed. (Registry is directed to place the report before this court for further directions . ) Sd/- **SHIRCY V. JUDGE** ## **SMA**