Niyas K. I v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942** ## **Bail Appl..No.3288 OF 2020** **CRIME NO.118/2020 OF Erattupettah Police Station , Kottayam** ## **PETITIONER/A4:** **NIYAS K.I AGED 24 YEARS S/O.ISMAIL, KUNTHIPARAMBIL HOUSE, ERATTUPETTAH P.O., KADUVAMUZHI, KOTTAYAM DISTRICT.** **BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.C.N.PRABHAKARAN SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.07.2020, THE COURT ON 28.07.2020 PASSED THE FOLLOWING:** BA 3288/20 -2- ## O R D E R BA No.3288 of 2020 ------------------------------------Dated this the 28[th] day of July, 2020 Application for anticipatory bail under Section 438 Cr.P.C. 2. The applicant is the 4[th] accused who seeks a prearrest bail in anticipation of arrest in Crime No. 118/2020 of Erattupetta Police Station for having allegedly committed an offence punishable under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). 3. The prosecution case in brief is that on 30/01/2020 at about 11:10 PM consequent to getting a reliable information about the four accused persons keeping in possession drugs coming in schedule H1 for the purpose of sale without any licence or prescription by the Doctor, the Police party went in search of them and intercepted a Maruti Zen car bearing registration No. KL 07 Y 6866 and found four persons in the car. On seeing the Police party, accused to 3 and 4 fled from BA 3288/20 -3- there. Accused 1 and 2 were apprehended. Inspection of the car revealed 21 bottles containing 100 ML each of Triprolidine Hydrochloride and Codeine Phosphate (CODECTUSS) and 12 numbers Nitrazepam Tablets IP (Nitrosun 10) concealed inside the panel of the right side rear door of the car. And thus they committed the offence as alleged. 4. The applicant contends that he is innocent and is not aware of the seizure of narcotic drugs as stated by the prosecution. The prosecution story that the applicant along with the 3[rd] accused had fled away from the scene on seeing the Police party is an absolute falsity. It is contended that the applicant had undergone a major surgery at the Medical College Hospital Kottayam, following a road traffic accident in which he had sustained a severe head injury. Annexure-A2 are documents pertaining to his treatment for the surgery. Because of the subdural haematoma and the fracture of the left parietal bone in consequence to the accident, the applicant has been permanently disabled to the extent of 40 percent for having locomotor disability on the left side due to post-traumatic BA 3288/20 -4- hemiparesis which is evidenced by Annexure-A3 Certificate obtained by the applicant from the Government Hospital, Pala. 5. Heard the learned counsel appearing for the applicant, Shri B.K. Gopalakrishn and the learned Public Prosecutor. 6. Sri Gopalakrishnan strenuously argues that the applicant being a disabled person due to hemiparesis, has weakness in his arms and legs or feet. And that loss of balance, difficulty in walking, impaired ability to grab objects, decrease in movement precision, muscle fatigue and lack of coordination are some of the symptoms of a person suffering from hemiparesis. The learned counsel has downloaded some literature pertaining to hemiparesis from the internet, and produced it as Annexure A4, the source of which is unknown. The learned counsel has also downloaded some literature from similar unknown sources to indicate that the locomotor disability means that it causes problems in a person's movements like walking, picking, or holding things in hand etc. Such being the condition of the applicant, it is hard to believe BA 3288/20 -5- that he had taken to his heels on seeing the Police party and had escaped from them. 7. Sri.Gopalakrishnan relies on a catena of decisions in support of his argument that the bail can be granted to an accused in a case coming under the NDPS Act, despite the embargo under Section 37 for which there is no blanket ban on the powers of the High Court under Section 438 of the Cr.P.C. The learned counsel also draws attention of this Court to the fact that the applicant was arraigned as an accused in this case solely based on the alleged confession statement given by accused 1 and 2 who were apprehended. The learned counsel also reminds this Court the importance of liberty of individuals being sacrosanct. Added to this, the learned counsel points out that the applicant is a person without any antecedents. All these circumstances would weigh in favour of granting a prearrest bail to the applicant, submits the learned counsel. 8. _Per contra_ , the learned Public Prosecutor would counter the arguments advanced by the learned counsel for the applicant by stating that the applicant is implicated in a case BA 3288/20 -6- involving commercial quantity of narcotic drugs. Hence, Section 37 (1) (b) (ii) of the NDPS Act would be attracted in this case. The learned Prosecutor also would point out that the disabilities pointed out by the applicant did not prevent him from fleeing. The accident in which he was allegedly involved took place on 08/12/2017 and the Certificate of disability was obtained only on 30/06/2020. Considering the gravity of the offence, the applicant may not be released on bail particularly on a prearrest bail, argues the learned Public Prosecutor. 9. After having given my anxious consideration to the arguments advanced by either side and also the documents and decisions relied upon by the applicant, I find that the applicant is not entitled to the extraordinary benefit of a prearrest bail in this case, after having fled away from the clutches of the Police. The reasons for that I shall elaborate. 10. The relevant portion of Section 37 of the NDPS Act reads thus: > “ (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-(a) Every offence punishable under this Act shall he cognizable; BA 3288/20 -7- (b) No person accused of an offence punishable for[37] [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 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.” The Court while considering the application for bail with reference to Section 37 of the NDPS 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 (emphasis supplied) for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has to consider the matter as if it is pronouncing judgment of acquittal on recording a finding of not guilty. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist a material to come to such BA 3288/20 -8- conclusion. (See **Union o** _**f India v.**_ **Sri Shiv Shankankar Kesri 2007 (7) SCC 798: 2007 KHC 5675 (SC)** relied upon) 11. The words "reasonable grounds" used in the statute 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. (See **Shaji N v. State of Kerala [2019(1) KHC 667]** ) 12. Adherence to Section 37 of the NDPS Act is undoubtedly mandatory. But it is also true that Section 37 is not a blanket bar on the powers of the High Court in granting bail. It has to be seen whether there are reasonable grounds in this case to believe that the accused is not guilty. The two grounds which are being embarked upon by the learned counsel appearing for the applicant are that confession of the co-accused under Section 67 of the NDPS Act alone is not BA 3288/20 -9- ## sufficient. In **Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence [2018 KHC** ## **6543 : AIR 2018 SC 3574]** considering the scope of Section 67 of the NDPS Act, the Hon'ble Apex Court has held thus:- “Even if we are to proceed on the premise that such statement under S. 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co - accused. It is noteworthy that unlike S.15 of Terrorist and Disruptive Activities Act, 1987 (Similarly: S.18 of Maharashtra Control of Organised Crime Act, 1999) which specifically makes confession of a co - accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co - accused. The matter therefore has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co - accused as against other accused. “ The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the BA 3288/20 -10- judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (See **In re Periyaswami Moopan [1931 ILR. 54 Mad. 75 at 77]** ) ## 13. In **Union of India v. Ram Samujh and Ors., [1999 KHC 1542]** , 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.” Again , the Hon'ble Apex 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. Chief Secy., Union Territory of Goa, [1990 KHC 699]** as under: > “ 24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of BA 3288/20 -11- 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 S.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." ## 14. In a latest decision of the Hon'ble Apex Court in **State of Kerala v. Rajesh etc. [2020(1) KHC 577]** , it is ## held thus :- “The scheme of S.37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S.439 of the CrPC, but is also subject to the limitation placed by S.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 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.” BA 3288/20 -12- The argument of the learned counsel appearing for the applicant regarding the reliance on the confession statement of the co-accused cannot be comprehended now, but the trial Court will have to necessarily consider this aspect pointed out by the learned counsel during trial. The confession statement alone may not be sufficient to enter an order of conviction unless there are other substantial piece of evidence pointing out towards the guilt of the accused. The prosecution in this case has still time for finding such evidence against the accused. Hence, it is too early to conclude that the prosecution case rests solely on the basis of the confession statement. 15. The other argument advanced by the learned counsel is that the prosecution case is belied because of the physical incapacity of the applicant to run away from the scene of occurrence. Hemiparesis may be a condition where the person affected is incapacitated from walking or running but that is not a permanent feature. Even as per the literature produced by the learned counsel for the applicant, treatment like BA 3288/20 -13- physiotherapy could cure a person of such disability. The accident had occurred in the year 2017 and the involvement of the accused in the present crime is in the year 2020. There is possibility that he is cured of the disability to a great extent so as to enable him to flee from the Police officers. The disability certificate produced as Annexure-3 cannot be accepted at this stage without its standing scrutiny by the trial Court. 16. Considering the gravity of the offence, I am not inclined to grant bail, in particular a pre-arrest bail, to the applicant. The application is, therefore, dismissed. The applicant is directed to surrender before the investigating officer within two weeks. After his interrogation and arrest, he shall be produced before the jurisdictional Court, where he shall be at liberty to apply for a regular bail. Sd/ASHOK MENON JUDGE jg