Muhammed Shafath Khan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944** **BAIL APPL. NO. 718 OF 2023** **S.C.NO.207 OF 2022 ON THE FILE OF THE SPECIAL COURT FOR NDPS ACT CASES/ADDITIONAL SESSIONS COURT-II, KALPETTA, WAYANAD** **CRIME NO.13 OF 2022 OF OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, WAYANAD** ## **PETITIONER/ACCUSED :** **MUHAMMED SHAFATH KHAN AGED 24 YEARS S/O. NAZEER KHAN, MARIYAM VILLA, NEAR KARA MAZJID, PAYYANNUR P.O., KANNUR-670307. PRESENTLY RESIDING IN IRANJOLITHAYAM HOUSE, HOUSE NO. 541, KUNNAMANGALAM, PERINGALAM P.O, KOZHIKODE, PIN - 673571 BY ADVS. T.D.SUSMITH KUMAR T.O.DEEPA C.SIVADAS** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 2 EXCISE CIRCLE INSPECTOR EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, MEENANGADI P.O, WAYANAD, PIN - 673591 BY SRI P.G.MANU, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.718 of 2023 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------B.A.No.718 of 2023 -------------------------------------------------------Dated this the 13[th] day of February, 2023** ## **O R D E R** This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner who is the sole accused in Crime No.13 of 2022 of of Excise Enforcement and Anti Narcotic Special Squad, Wayanad now pending as S.C.No.207 of 2022 on the file of the Special Court for NDPS Act Cases/Additional Sessions Court-II, Kalpetta, Wayanad. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. 3. I have perused the Case Diary materials B.A.No.718 of 2023 ..3.. along with report produced by the learned Public Prosecutor. 4. The prosecution case in nutshell is that, at 11.50 a.m. on 19.02.2022, the Circle Inspector of Excise Enforcement and Anti Narcotic Special Squad, Wayanad searched the bus bearing registration No.KA-09F-5299 at Noolpuzha and it was found that the petitioner, who was sitting in the bus along with a bag, failed to give proper answers to the officer and accordingly, he was searched in the presence of two witnesses. On search, 115 gms of Methamphetamine found to be in his possession. Accordingly, he was arrested, contraband taken into custody and crime registered alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act. 5. The learned counsel for the petitioner B.A.No.718 of 2023 ..4.. argued that the petitioner is entitled to be released on regular bail mainly for three reasons. According to the learned counsel, the versions regarding the possession of the alleged bag which enclosed contraband are inconsistent. (2) Unreasonable and illogical prosecution version to be noticed in the prosecution allegation. That apart, family background of the petitioner is that his wife is a cancer patient and their toddler is aged 1½ years. 6. In order to substantiate reasons 1 and 2, the learned counsel for the petitioner read out the seizure mahazar and submitted that, when the petitioner was found in possession of the bag containing contraband, he kept silence is the narration in the scene mahazar. But silence is not the normal response of a person who carry contraband and therefore, the version of the prosecution in that line is not believable. Apart B.A.No.718 of 2023 ..5.. from that, he has pointed out the third reason referred herein above and the custody of the petitioner from 19.02.2022. 7. Opposing grant of bail, the learned Public Prosecutor would submit that there is no improbability in the prosecution case in a case, where the accused was nabbed red-handedly. Since the contraband is commercial quantity, only after diluting the rider under Section 37 of the NDPS Act, bail can be granted. 8. I have perused the Case Diary including the seizure mahazer to find out inconsistencies, if any, as pointed out by the learned counsel for the petitioner. On perusal of the mahazar, the petitioner, who was found carrying a bag and who failed to reply to the query at the instance of the detecting officer, was searched doubting contraband in possession of his bag in the presence of B.A.No.718 of 2023 ..6.. two witnesses, which led to recovery of the contraband. In fact, inconsistencies and improbabilities in the prosecution case, as pointed out by the learned counsel for the petitioner, could not be seen prima facie and therefore, the grounds raised by the learned counsel for the petitioner to grant bail to the petitioner found to be not convincing to dilute the rider under Section 37 of the NDPS Act. 9. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. 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_ B.A.No.718 of 2023 ..7.. _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._ 10. 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 the contraband was seized, the Court can grant bail only B.A.No.718 of 2023 ..8.. 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. 11. 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. B.A.No.718 of 2023 ..9.. 12. It was further held that the Court while considering the application for bail with reference to S.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. 13. 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 B.A.No.718 of 2023 ..10.. (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: 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 : B.A.No.718 of 2023 ..11.. ILR 2020(1), Ker.848] 14. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the 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. 15. Thus, this Court while granting bail to an B.A.No.718 of 2023 ..12.. 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 and he will not likely to commit any offence while on bail. 16. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- **A.BADHARUDEEN, JUDGE** rkj B.A.No.718 of 2023 ..13.. ## **APPENDIX OF BAIL APPL. 718/2023** ## **PETITIONER ANNEXURES** **ANNEXURE A-1** **THE CERTIFIED COPY OF THE CRIMINAL MISCELLANEOUS PETITION NO.1298/2022 THE SPECIAL JUDGE NDPS ACT CASES/ADDITIONAL SESSIONS JUDGE-II, KALPETTA, WAYANAD.**