NIBIN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** ## **BAIL APPL. NO. 11617 OF 2023** **CRIME NO.668/2023 OF ALUVA WEST POLICE STATION (ALANGAD), ERNAKULAM** **PETITIONER/2ND ACCUSED:** **NIBIN, AGED 28 YEARS S/O NARAYANAN, KALLIKKAT HOUSE, KARA, PUTHIYAROAD, KODUNGALLUR, THRISSUR, PIN - 680666** **BY ADV MANSOOR ALI** ## **RESPONDENT/COMPLAINANT:** **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 13.03.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.11617 of 2023 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, the Code), by the second accused in Crime No.668/2023 of the Aluva West Police Station (Alangad), Ernakulam, registered against the accused (2 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 22.12.2023. 2. The essence of the prosecution case is that: on 22.12.2023, while the police party was conducting a combing operation, they intercepted the motorcycle bearing Reg.No.KL 47-L-2752 ridden by the second accused with the first accused on the pillion, and in the search that was conducted they seized 0.732 gms of LSD from the conscious possession of the first accused. The accused had hatched a conspiracy to commit the above B.A.No.11617 of 2023 3 offences. Thus, the accused have committed the above offence. 3. Heard; Sri.Mansoorali, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. A reading of Annexure 1 FIR would substantiate that the contraband was allegedly seized from the conscious possession of the first accused. It is only because the petitioner rode the motorcycle belonging to the first accused, he has been falsely implicated in the crime. There is no incriminating material to show that the petitioner has any connection with the contraband article. Notwithstanding the above contentions, the petitioner has been in judicial custody since 22.12.2023, recovery has been effected and the investigation in the case is practically complete. Hence, B.A.No.11617 of 2023 4 the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report. It is contended that the accused 1 and 2 had hatched a criminal conspiracy to sell the contraband article. It was in furtherance of their common intention they were transporting the contraband article. It was in the above circumstances, Section 29 of the Act has been incorporated in the crime. The contraband that was seized from the purse of the first accused is of a commercial quantity. Since the petitioner was travelling along with the first accused, he has also a in the crime. There are complicity incriminating materials to establish that the accused had travelled to the different parts of the country and procured the contraband. There are also call details also to establish the complicity of the petitioner. Since the contraband is of a commercial quantity, the rigour under Section 37 of the Act applies to the facts of the case. Hence, the B.A.No.11617 of 2023 5 petitioner is not entitled to be released on bail. 6. The crux of the prosecution allegation is that the accused 1 and 2 had hatched a conspiracy to sell the contraband article and in furtherance of their intention they had in their possession 0.732 gms of LSD which was seized from the purse of the first accused while the accused 1 and 2 were travelling together on the same motorcycle. 7. Indisputably, the contraband is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 8. 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 B.A.No.11617 of 2023 6 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. 9. 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. B.A.No.11617 of 2023 7 10. 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”. ## 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 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 B.A.No.11617 of 2023 8 have been prescribed”. 12. 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. 13. 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) B.A.No.11617 of 2023 9 reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 14. On a meticulous scrutiny of the factual matrix, the law referred to above, and taking into account the gravity of accusations leveled against the petitioner, the potential severity of the punishment that can be imposed on him in the event of him being found guilty, the commercial quantity of the contraband involved in the case, I am at this stage satisfied that there are no reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if enlarged on bail, so as to dilute the rigour under Sec.37 of the Act. Resultantly, the application is dismissed. Sd/- ``` C.S.DIAS ``` ``` JUDGE ``` ``` shg ```