Neil John Peter v. State of Kerala and Intelligence Officer, Narcotics Control Bureau, Cochin

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 BAIL APPL. NO. 10656 OF 2023 ``` ## **`CRIME NO.5/2023 OF NARCOTICS CONTROL BUREAU, KOCHI,`** ## **`ERNAKULAM`** ## **`PETITIONER/ACCUSED NO.2:`** ``` NEIL JOHN PETER, AGED 23 YEARS S/O JOHN, D16A, PILLAIVEEDU,KESHAVAPURAM, THIRUVANANTHAPURAM, PIN - 695004 ``` ``` BY ADVS. MANSOOR.B.H. SAKEENA BEEGUM ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU, COCHIN, PIN - 682018 SR SRI P. VIJAYA BHANU ``` ``` BY ADV SRI.RAJAGOPALAN NAIR.K.R., CGC ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`B.A. NO.10656 OF 2023 2`** Dated this the 8[th] day of February, 2024 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in O.R. 5/2023 of the Narcotics Control Bureau, Cochin (NCB) registered against the accused (three in number) for allegedly committing the offences punishable under Sections 8(C) r/w Section 22(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act,1985 ( in short, ‘NDPS Act’) 2. The essence of the prosecution case is that, on 20.6.2023, at around 8.10 hours, the Intelligence Officer, NCB, Cochin, received a secret information that a parcel with tracking number ET586713543IN containing suspected narcotics was received by the ## **`B.A. NO.10656 OF 2023 3`** Tripunithura Post office on the same day. Accordingly, the Intelligence Officer and his team reached the post office. When, the first accused took delivery of the parcel, they intercepted the first accused and opened the parcel. It was found that the parcel contained 550 mg of thick multi coloured designed paper presumed to be LSD. The first accused was arrested then and there from the spot. During the course of interrogation, the first accused confessed that it was the second accused, who financed the purchase, who in turn had purchased the contraband from the 3[rd] accused. Consequently, the second accused was arrested on 23.6.2023 and, thereafter, the 3[rd] accused’s arrest was recorded. Thus, the accused have committed the above offences. 3. Heard; Sri.P.Vijaya Bhanu, the learned Senior Counsel appearing for the petitioner and Sri. Rajagopalan Nair, the learned Special Public Prosecutor appearing for the respondents. ## **`B.A. NO.10656 OF 2023 4`** 4. The learned Senior Counsel contended that the petitioner has been falsely implicated in the crime. The petitioner is totally innocent of the accusation levelled against him. There is no material to substantiate that the petitioner has any connection in the crime because the parcel was addressed and collected by the first accused. The petitioner has been in judicial custody since 23.6.2023. The investigation in the case is complete and the final report has been laid. The petitioner’s further detention is unnecessary. The petitioner has no criminal antecedents. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the first accused had paid the consideration for the contraband through the second accused by using a crypto currency, named ‘XMR’. The second accused had transferred 1.83 ## **`B.A. NO.10656 OF 2023 5`** XMR, equivalent to Rs.20,000/- using an application named, Binance to the 3[rd] accused. The 3[rd] accused named, Tile Shop, is being operated by a person named Mohammed Niyas. The 3[rd] accused is involved in 15 other crimes of similar nature across the country. The 3[rd] accused was arrested in another crime and his arrest has been recorded in the present case. There are several communications between the accused 1 and 2, and accused 2 and 3. The entire details have been incorporated in the final report, which has been laid before the jurisdictional court. The materials reveal that the petitioner is also involved in the above crime that is the reason why Section 29 of the NDPS Act has been incorporated. The contraband that was seized is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts and circumstances of the case. If the petitioner is released on bail, there is every likelihood of him committing similar offences. This Court in B.A.No.3709/2023 has ## **`B.A. NO.10656 OF 2023 6`** categorically observed that new methods have been devised to defeat the process of law by using advanced technology, which has to be nipped in the bud. Therefore, such offences do not warrant any leniency to be shown and have to be dealt with strictly. He also placed reliance on the order of this Court in B.A. No.8287/2023, wherein the 3[rd] accused was again involved, which was also dismissed by this Court, taking into account the rigour under Section 37 of the NDPS Act. He prayed that the application may be dismissed. 6. The prosecution allegation is that, the Investigating Officer apprehended the first accused red handed with the contraband article of 550 mg of LSD. The second accused/petitioner who transferred the money in crypto currency to the 3[rd] accused. The prosecution also relies on various communications between the accused 1 and 2, and accused 2 and 3, and also the confirmation from the Binance application, to ## **`B.A. NO.10656 OF 2023 7`** show that the second accused has transferred the crypto currency from his account to the account of the 3[rd] accused. 7. Indisputably, the contraband that is involved in the case is of a commercial quantity. 8. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving an offence under the Act. It is apposite 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 subsection (1) are in addition to the ## **`B.A. NO.10656 OF 2023 8`** limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” ## (highlighted) 9. A reading of the above provision indicates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and 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, an accused alleged to have committed an offence under the Act is entitled to be enlarged on bail not only subject to provisions under Sec.439 of the Code but also on satisfying the twin conditions contemplated under Sec.37 of the Act. 10. The Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] has interpreted the expression ‘reasonable grounds’ under Section 37 of the Act in the following manner: ## **`B.A. NO.10656 OF 2023 9`** “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”. ## 11. 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 thus: “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”. ## **`B.A. NO.10656 OF 2023 10`** 12. In **State of Kerala and others v. Rajesh and others** [(2020) 12 SCC 122], an appeal arising from a bail order passed by this Court granting bail to a person accused of an offence under the Act, wherein the Honourable Supreme Court went to hold as follows: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine ## **`B.A. NO.10656 OF 2023 11`** smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin ## **`B.A. NO.10656 OF 2023 12`** conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act”. 13. In addition to the above precedents, 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 thus: “9.xxx xxx xxx However, it is equally incumbent upon ## **`B.A. NO.10656 OF 2023 13`** 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”. ## 14. In B.A. No.3709/2023, this Court has observed ## thus:- 15. Thus, while deciding the question of bail, the aforesaid principles have to be kept in mind. When considering the issues involved in this case, in the light of the above observations, it can be seen that new methods are seen devised as an attempt to defeat the process of law by making use of advanced technology, and if such attempts are not nipped in the bud, the purpose behind the stringent provisions of the NDPS Act, would get defeated thereby preventing the achievement of the very objects behind the enactment. This is an offence which does not ## **`B.A. NO.10656 OF 2023 14`** warrant any leniency and is required to be dealt with strictly. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and particularly after going through the law laid down by the Honourable Supreme Court in **Shiv Shanker Kesari’s case, Mohd. Nawaz Khan’s case and Rajesh and others’s case (supra)** and comprehending the gravity, nature, and seriousness of the accusation levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him in the event of him being found guilty, the commercial quantity of contraband that is involved, I am at this stage not satisfied that there are no reasonable grounds to believe that the petitioner is not guilty of the offence alleged against him and there is no likelihood of him committing any offence, if released on bail. I do not find any cogent grounds to dilute the rigour under Section 37 of the Act. The application is ## **`B.A. NO.10656 OF 2023 15`** devoid of any merit and is only to be dismissed. Resultantly, the bail application is dismissed. **SD/-** **C.S.DIAS, JUDGE** rmm8/2/2024