Nagamma Saraswathy v. State of Kerala and Sub Inspector of Police, Punnapra Police Station, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945** **BAIL APPL. NO. 9051 OF 2023** **CRIME NO.582/2023 OF PUNNAPRA POLICE STATION, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT CRMP 3846/2023 OF DISTRICT & SESSIONS COURT,** ## **ALAPPUZHA** ## **PETITIONER/ACCUSED NO.2:** **NAGAMMA SARASWATHY, AGED 24 YEARS DAUGHTER OF SATHYAN, NEAR KODESHERIMALA TEMPLE, MUDATHIKODU, VELOOR PANCHAYATH, THRISSUR, PIN - 680601** ## **BY ADV P.MANOJKUMAR** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE SUB INSPECTOR OF POLICE, PUNNAPRA POLICE STATION, ALAPPUZHA, PIN - 688004** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.9051 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.582/2023 registered by Punnapra Police Station, Alappuzha against the accused (2 in number) for allegedly committing the offences punishable under Sections 22(c) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). 2. The gist of the prosecution case is that: on 23.06.2023 at 8.45 p.m, the accused 1 and 2 were found travelling in an Innova car bearing Reg.No.KL 03 P 4138 and were found in possession of 10.99 gms of MDMA for the purpose of sale. The accused were caught red handed with the contraband article. Thus, the accused have committed the above offences. 3. Heard; Sri.P.Manojkumar, the learned Counsel **BAIL APPL.NO.9051 OF 2023** **3** appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondents. 4. When the bail application came up for consideration on 09.11.2023, this Court granted interim bail to the petitioner till 30.11.2023, subject to the condition that she should report back to jail on 01.12.2023. 5. Subsequently, when the bail application was taken up for consideration on 20.12.2023, there was no representation for the petitioner. Consequently, this Court extended the interim bail till 05.01.2024. Again, when the bail application came up for consideration on 08.01.2024, there was no representation for the petitioner and this Court directed the learned Public Prosecutor to ascertain as to whether the petitioner has reported back to jail, as directed on 09.11.2023. 6. Today, when the bail application taken up for consideration, the learned Public Prosecutor submitted that the petitioner has violated the interim order by not returning back to the jail on 01.12.2023. **BAIL APPL.NO.9051 OF 2023** **4** 7. Heard. 8. The prosecution case is that, the accused were found in possession of 10.99 gms of MDMA on 23.06.2023. The said contraband is of a commercial quantity. 9. Section 37 of the Narcotic Drugs and Psychotropic 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 **BAIL APPL.NO.9051 OF 2023** **5** (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.” 10. 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 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. 11. 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 **BAIL APPL.NO.9051 OF 2023** **6** “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”. ## 12. 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 prescribed”. 13. 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 **BAIL APPL.NO.9051 OF 2023** **7** Code, while considering a bail application. 14. 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.9051 OF 2023** **8** ## 15. Similarly, in **Kalyan Chandra Sarkar v. Rajesh** ## **Ranjan** , [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338)”. 16. On a cumulative appreciation of the factual matrix, **BAIL APPL.NO.9051 OF 2023** **9** the gravity of the accusations levelled against the petitioner, the petitioner flouting the interim order dated 09.11.2023 by not returning back to the jail on 01.12.2023 and also taking into account the antecedents of the petitioner, I am at this stage satisfied that there are reasonable grounds to believe that the petitioner is guilty of the offence alleged against her and there is every likelihood of her committing a similar offence, if she is released on bail. I do not find any cogent grounds to dilute the rigour under Section 37 of the Act. The application is meritless and it is only to be dismissed. 17. Resultantly, the Bail Application is dismissed. It will be up to the investigating officer to apprehend the petitioner for the violation of the interim order dated 09.11.2023 passed by this Court. **Sd/-** **C.S.DIAS JUDGE** ## **shg**