Muhammed Siraj.K.H v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945** **BAIL APPL. NO. 11587 OF 2023** **CRIME NO.250/2023 OF KASARAGOD POLICE STATION, KASARGOD** **PETITIONER/ACCUSED NO.2:** **MUHAMMED SIRAJ.K.H, AGED 30 YEARS SON OF ABOOBACKER.T, NHANIKKADAVU, OZHINJAVALAPPU.P.O, KANHANGAD VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671315** **BY ADVS. A.ARUNKUMAR SACHIN GEORGE ARAMBAN S.SHYAM KUMAR** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.11587 OF 2023** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the second accused in Crime No.250/2023 of the Kasaragod Police Station, Kasaragod registered against the accused (two in number) for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 25.03.2023. 2. The gist of the prosecution case is that: around 12 noon on 25.03.2023, while the Sub Inspector of Police, Kasaragod and party were conducting patrolling duty, they found accused 1 and 2 coming out from the railway station. On inspection of the shoulder bag of the first accused, they seized 100 gms of MDMA from the said bag. The accused 1 and 2 have transported commercial quantity of contraband in violation of the provisions of the Act. Thus, the accused have committed the above offences. **BAIL APPL.NO.11587 OF 2023** **3** 3. Heard; Sri.Arun Kumar A, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. Even going by the allegations in the FIR, it was from the conspicuous possession of the first accused that the contraband was seized. The only allegation against the petitioner is that he was seen walking along with the first accused. On the basis of the said allegation, the petitioner cannot be implicated as an accused. The petitioner has no criminal antecedents. The petitioner has been in incarceration since 25.03.2023, which is nearly a year. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner and the first accused were found in possession of the contraband article **BAIL APPL.NO.11587 OF 2023** **4** which is of commercial quantity. Since Section 29 of the Act has been incorporated, there is a common intention between the accused to transport and trade with the contraband article. As the contraband is of commercial quantity, the rigour under Section 37 of the Act applies to the facts of the case. Moreover, the accused were travelling on a joint train ticket, which establishes their common intention and prima facie proves Section 29 of the Act. The investigation in the case is complete and Final Report has been laid. The case has now been numbered as S.C.501/2023 and is pending on the files of Additional Sessions Court III, Kasaragod. Hence, the bail application may be dismissed. 6. On an appreciation of the materials placed on record, it is prima facie found that the accused 1 and 2 were travelling together on the same train. It was in the inspection that was conducted by the patrolling party, the accused were found in possession of 100 gms of MDMA, which is admittedly a commercial quantity. 7. Section 37 of the Narcotic Drugs and Psychotropic **BAIL APPL.NO.11587 OF 2023** **5** 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 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 **BAIL APPL.NO.11587 OF 2023** **6** 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 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 drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been **BAIL APPL.NO.11587 OF 2023** **7** 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. ## 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”. **BAIL APPL.NO.11587 OF 2023** **8** 13. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, seriousness and gravity of the accusations leveled against the petitioner, that the contraband is of commercial quantity, and that there are incriminating materials to prima facie establish that the petitioner was travelling along with the first accused, I do not find any reasonable ground to hold that the petitioner is not guilty of the offence alleged against him and he is not likely to commit a similar offence, if he is enlarged on bail. Therefore, I hold that the rigour under Section 37 of the Act applies to the facts and circumstances of the case. The application is devoid of any merit and it is only to be dismissed. Resultantly, the application is dismissed. **Sd/C.S.DIAS JUDGE** **shg**