Muhammed Sija v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 BAIL APPL. NO. 7564 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT SC 948/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, THIRUVANANTHAPURAM / IV ``` ## **`ADDITIONAL MACT`** ``` CRIME NO.ECB 01/2023 OF EXCISE CRIME BRANCH SOUTHERN RANGE ``` ## **`PETITIONER/5TH ACCUSED:`** ``` MUHAMMED SIJA AGED 29 YEARS S/O.KHADER, SALVA MANZIL, PARASSINI ROAD, MULLAKODI P.O., NAMBRAM DESOM, NANIYOOR AMSHAM, KAYARALAM VILLAGE, THALIPARAMBA TALUK, KANNUR, PIN – 670602. BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN APARNA JOY ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` SENIOR PUBLIC PROSECUTOR SRI K DENNY DEVASSY THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07.09.2023 AND THE COURT ON 21.09.2023 DELIVERED THE FOLLOWING: ``` B.A.No.7564/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.7564 of 2023_ _================================ Dated this the 21st day of September, 2023_ ## _**O R D E R**_ This is the second application for regular bail filed by the 5th accused in Crime No.ECB 01/2023 of Excise Crime Branch Southern Range. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the final report placed by the learned counsel for the petitioner and the report of the Investigating Officer along with the final report and documents put in by the learned Public Prosecutor. 3. The prosecution case is that at about 8.25 a.m on 10.11.2022, when the Excise Inspector and party engaged in B.A.No.7564/2023 3 vehicle checking at Amaravila Check Post, 75 grams of MDMA (later found as methamphetamine, as per chemical analysis report) was seized from the 1st accused while he was transporting the same in a bus bearing Reg.No.KA-01-AM-7666. Accordingly, alleging commission of offences punishable under Sections 22(c), 29 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1987 (hereinafter referred to as `NDPS Act' for short), crime was registered. It has been revealed during investigation that the petitioner/5th accused is the person, who arranged MDMA from a Nigerian citizen in Bangalore and was handed over to the 3rd accused and in turn the same was possessed by the 1st accused. Accordingly, the petitioner was arrested on 26.03.2023 and has been in custody thereafter. 4. While pursuing regular bail to the petitioner, the learned counsel for the petitioner would submit that the petitioner is innocent and there is no materials apart from the confession B.A.No.7564/2023 4 statement of the 1st accused, to connect the petitioner in this crime. According to the learned counsel for the petitioner, since confession statement recorded under Section 67 is held to be inadmissible during trial, the petitioner is liable to be released on bail diluting the rider under Section 37 of the NDPS Act, even though the quantity of contraband is commercial in nature. It is pointed out that after dismissal of the earlier bail application (B.A.No.3179/2023) filed by the petitioner as per Annexure-A3 order, final report was filed and in the final report also, there is nothing to connect the complicity of the petitioner. In view of the matter, the rider under Section 37 of the NDPS Act shall be adjudged in favour of the petitioner and he is liable to be released on bail. 5. Whereas it is submitted by the learned Public Prosecutor that the petitioner was nabbed not only based on the confession statement of the 1st accused but based on the statement given by his B.A.No.7564/2023 5 own brother stating that he had transferred Rs.75,000/- in the account of the 1st accused as directed by the petitioner and the same money was used to purchase the MDMA. In fact, the prosecution has filed final report not only based on the confession statement, but also on the statement of the brother of the petitioner that he had transferred money to the account of the 1st accused as instructed by his brother, who is the petitioner herein (5th accused), and in the charge there is specific allegation that all accused in this crime hatched conspiracy to deal with the contraband and dealt with the contraband. Therefore, all accused are equally liable. In such circumstances, the complicity of the petitioner is supported by ample materials and, therefore, the petitioner cannot be released on bail without diluting rider under Section 37 of the NDPS Act. 6. On perusal of the case diary materials, including the final report and the documents appended thereto, it appears that the contraband was seized while the 1st accused was transporting the B.A.No.7564/2023 6 same in a bus and he had given confession statement to the effect that it was the petitioner, who arranged the contraband from a Nigerian citizen in Bangalore and handed over the same to the 3rd accused and in turn he had possessed and transported the same. In the FIR itself it is stated that Rs.92,000/- was transferred by one Niranjan Prakash, who is a friend of the 4th accused, in the account of the 3rd accused. Thereafter, it was found that one Shahid P.V, a native of Kannur district was the person who transferred money in the account of Niranjan Prakash. When Shahid P.V, none other than the brother of the petitioner, was questioned, he deposed that he had transferred the amount as directed by his brother, who had been running business in Bangalore. That apart, the other accused also given supporting statements to substantiate that the petitioner is the person who purchased the contraband, which in turn transported by the 1st accused. 7. On perusal of the final report, the specific allegation of B.A.No.7564/2023 7 the prosecution is that the accused herein hatched conspiracy to transport narcotic drugs and psychotropic substances and accordingly they have jointly transported 75 grams of Methamphetamine (commercial quantity) in continuation of the conspiracy hatched in between them. The prosecution records would go to show that, apart from the confession statement, there is convincing evidence as that of the brother of the accused that he had transferred money to purchase the contraband for and on behalf of the 5th accused. Thus the complicity of the petitioner in this case is established _prima facie_ . Since the quantity of the contraband is 75 grams of Methamphetamine, this Court cannot grant regular bail to the petitioner without diluting rider under Section 37 of the NDPS Act. 8. Earlier bail application of the petitioner was dismissed holding that the rider under Section 37 of the NDPS could not be diluted and it was observed in paragraphs 7 to 13 as under: B.A.No.7564/2023 8 _“7. 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 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. 8. 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._ _9. 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._ _10. It was further held that the Court while considering the_ ## B.A.No.7564/2023 9 _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._ _11. 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 (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 : ILR 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799],_ _**Union of India v. Jitentra Giri** ._ _12. 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_ B.A.No.7564/2023 10 _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._ _13. On evaluation of the prosecution materials on par 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.”_ 9. In fact, nothing substantiated to revisit the earlier finding of this Court while denying bail in a case involving commercial quantity of contraband, so as to dilute the rigour under Section 37 of the NDPS Act. In the above circumstances, this bail application stands dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_