Nishan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 BAIL APPL. NO. 1328 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTCRMP 50/2023 OF I ADDITIONAL DISTRICT ``` ## **`COURT, TRIVANDRUM`** ## **`PETITIONER:`** ``` NISHAN AGED 29 YEARS S/O NIZAR, NISHAL MANZIL, AYIROOR, VARKALA, THIRUVANANTHAPURAM, PIN - 695141 BY ADVS. LIJU. M.P REVATHI R. KURUP ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` P G MANU SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 2 ``` ## **O R D E R** Dated this the 13[th] day of March, 2023 This is an application for regular bail filed by the 2[nd] accused in Crime No.625/2022 of Kadakkavoor Police Station,Thiruvananthapuram. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Perused the detailed report submitted by the learned Public Prosecutor. 4. Prosecution case is that about 11:45 AM on 28.09.2022, the accused Nos.1 and 2 herein jointly possessed 320 grams of MDMA, for the purpose of sale and they were nabbed along with the contraband in front of Mass Auditorium near Mananakku Junction, Manamboor Village. Pursuant to recovery, crime alleging commission of offences punishable under Section 22(c) of the the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 3 ``` for convenience) was registered and the same is on investigation. 5. The learned counsel for the petitioner would submit that the petitioner who got arrayed as 2[nd] accused is absolutely innocent and he infact had given a lift to the 1[st] accused without knowing that he had been carrying contraband and therefore, the petitioner who has been in custody from 28.09.2022, deserves bail. 6. While opposing bail to the petitioner who involved in a serious offence where 320 grams and 15 mg of MDMA (commercial quantity), the learned Public Prosecutor submitted that this is the case of red handed recovery from accused Nos. 1 and 2, therefore, the prosecution case is well established prima facie. Since commercial quantity of contraband is involved, this Court cannot grant bail without satisfying the conditions under Section 37 of the NDPS Act. 7. On scrutiny of the available materials, it could be gathered that the Sub Inspector and party found that accused Nos.1 and 2 jointly transported 320 grams and 15 mg of MDMA along with 3 ATM cards, 3 mobile phones, two black purses and ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 4 ``` Indian currency worth Rs.1290/-. While accused Nos.1 and 2 were jointly transporting the same on a scooter bearing registration No. KL 81-1838 from Varkala to Attingal and they were nabbed near Mass Auditorium, Manakkaku Junction. Since the prosecution case is that complicity of the petitioner is well made out along with the 1[st] accused and therefore, the rigor under Section 37 of the Act would squarely apply and this Court cannot grant bail without satisfying the twin conditions provided therein. 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_ ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 5 ``` _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 ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 6 ``` recording of satisfaction that the accused is not guilty of the offence charged. 10. It was further held that the Court while considering the 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**_ ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 7 ``` _**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 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 ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 8 ``` 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. Hence the petition stands dismissed. sd/- ## **A. BADHARUDEEN** **JUDGE** **sab** ``` BAIL APPL. NO. 1328 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF BAIL APPL. 1328/2023`** ``` PETITIONER ANNEXURES Annexure1TRUE COPY OF THE FIR IN CRIME NO. 625/2022 OF KADAKKAVOOR POLICE STATION, THIRUVANANTHAPURAM Annexure2ORIGINAL OF THE ORDER DATED 18.01.2023 PASSED IN CRL.M.P NO.50/2023 ON THE FILE OF ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM ```