Muhammed Shamil Rasheed.K v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 ``` ## _`BAIL APPL. NO. 2392 OF 2023`_ ``` AGAINST THE ORDER/JUDGMENTCRMC 1019/2022 OF SPECIAL COURT (NDPS ACT CASES), ``` ## _`VADAKARA`_ Crime No. 544/20222 of Pantheerankavu Police Station, Kozhikode. ## _`PETITIONER/S:`_ ``` MUHAMMED SHAMIL RASHEED.K AGED 25 YEARS KILIYAM MANNIL RIPPON.P.O, WAYANAD DISTRICT., PIN - 673577 BY ADV ZUBAIR PULIKKOOL ``` ## _`RESPONDENT/S:`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ``` ## _`OTHER PRESENT:`_ ``` P G MANU SRPP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No. 2392 of 2023 ``` ``` ..2.. ``` ## **O R D E R** **Dated this the 24[th] day of May, 2023** This is an application for regular bail filed by the 1[st] accused in Crime No. 544/20222 of Pantheerankavu Police Station, Kozhikode. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary along with detailed report submitted by the Investigating Officer. 3. The prosecution case is that at about 7.55 hours on 15.10.2022 based on information received by the Investigating Officer to the effect that contraband was kept in Room No. 366 L of Oceanic apartment, Palazhi, at 8.30 hours search was conducted at the room. On search, the bag kept at the Room where from the money purse of one Muhammed Shamil Rasheed (the petitioner herein) was recovered, it was found that ``` B.A. No. 2392 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** 31.130 gram of MDMA, 0.450 gram LSD Stamp, 0.780 gram of MDMA Extasy Pills, 2.980 gram hashish oil, 11.050 gram ganja. Accordingly the same was seized and the petitioner who got arrayed as 1st accused was arrested. 4. The learned counsel appearing for the petitioner would submit that the recovery in so far as the MDMA is concerned, is found to be not correct in view of the chemical analysis report dated 25.01.2023. Since it was reported the chemical examiner that the contraband send for chemical analysis, naming it as MDMA, found as not MDMA, but methamphetamine. Accordingly, the learned counsel would submit that now the quantity of MDMA come down to intermediate quantity and therefore the rider under Section 37 would not attract. The counsel would submit that the petitioner is a first time offender and who has been in custody for the last 222 days. 5. On perusal of the mahazar pertaining to the recovery, it ``` B.A. No. 2392 of 2023 ``` ``` ..4.. ``` could be noticed that even transporting 31.130 gram of methamphetamine, altogether the contraband seized from the accused still remains as commercial quantity and therefore the rider under Section 37 of the NDPS Act squarely applied. This court cannot grant regular bail without diluting 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 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_ ``` B.A. No. 2392 of 2023 ``` ``` ..5.. ``` _while on bail._ _(2) The limitations on granting of bail specified in clause (b) of subsection (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._ 5. 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 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. 6. 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 ``` B.A. No. 2392 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** 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. 7. 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. 8. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the ``` B.A. No. 2392 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** decisions reported in _**Superintendent, Narcotics Central Bureau v. R.Paulsamy**_ [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (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 ``` B.A. No. 2392 of 2023 ``` ``` ..8.. ``` 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799], _**Union of India v. Jitentra Giri**_ . 9. 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. 10. On evaluation of the prosecution materials on par ``` B.A. No. 2392 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, this application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY P.A.TO JUDGE ```