Noble Norbert v. State of Kerala and Station House Officer, Vandandanmedu Police Station, Idukki District

## **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. 9391 OF 2023** **CRIME NO.337/2022 OF VANDANMEDU POLICE STATION, IDUKKI** **AGAINST THE ORDER/JUDGMENT CRMC 203/2023 OF SPECIAL COURT (NDPS ACT CASES),** ## **THODUPUZHA** ## **PETITIONER/ACCUSED NO.4:** **NOBLE NORBERT, AGED 25 YEARS S/O. NORBERT LOPEZ, LOVE LANDS, PUTHENTHOPP, KAZHAKKOOTTAM TALUK, THIRUVANANTHAPURAM, PIN - 695582** **BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 STATION HOUSE OFFICER, VANDANMMEDU POILICE STATION, IDUKKI DISTRICT, PIN - 685551** ## **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.9391 OF 2023** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the fourth accused in Crime No.337/2022 of the Vandanmedu Police Station, Idukki, registered against the accused (4 in number) for allegedly committing the offences punishable under Sections 20(c), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner's arrest was recorded on 01.09.2022. 2. The gist of the prosecution case is that: the accused 1 to 4 were engaged and were found in possession of MDMA, Hashish oil and LSD Stamps. It is alleged that, as per the instruction of the first accused, customers of narcotic drugs transferred money to the bank account of the second accused on 21.04.2022. Thereafter, the second accused transferred an amount of Rs.10,000/- to the bank account of **BAIL APPL.NO.9391 OF 2023** **3** the first accused as commission. The second accused transferred Rs.65,596/- to the bank account of the third accused, who after deducting an amount of Rs.5,596/- as commission transferred Rs.60,000/- to his another bank account. The fourth accused is the dealer of the narcotic drugs, who on receiving instruction, sold the contraband article to the accused. Thus, the accused have committed the above offences. 3. Heard; Sri.C.P.Udayabhanu, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner argued that the petitioner is totally innocent of the accusations levelled against him. In fact, the petitioner was in judicial custody in connection with another crime. Therefore, by no stretch of imagination could the petitioner commit the above offences. The petitioner has been falsely implicated in the crime. The petitioner has been in judicial custody since 01.09.2022 in the present case. The petitioner is prepared to abide by any **BAIL APPL.NO.9391 OF 2023** **4** stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner has criminal antecedents. He is already involved in crime No.337/2022 of Vandanmedu Police Station, Idukki and a crime arising from a case in Bangalore for committing similar offences. In both the above crimes, the cases are pending before the concerned jurisdictional courts. If the petitioner is let off on bail, there is every likelihood of him committing similar offences. The rigour under Section 37 of the Act may not be diluted. Therefore, the application may be dismissed. 6. When the bail application came up for consideration on 07.12.2023, this Court had called for a report from the jurisdictional court to ascertain the time period within which the trial in S.C.No.10/2023 can be completed. 7. Pursuant to the above order, the learned Sessions Judge for NDPS Act Cases, Thodupuzha, by report dated **BAIL APPL.NO.9391 OF 2023** **5** 12.12.2023, has informed this Court that the charge is to be framed. The court would require at least 9 months time to complete the trial in S.C.(NDPS) 10/2023. 8. The gist of the prosecution case is that, the accused was dealing with the contraband articles. It was on the requisition made by the first accused, the petitioner sold 60 gms of MDMA, 15 gms of hashish oil and 7 LSD stamps to the accused. The petitioner has received money for the said transactions. 9. The above contraband articles are of commercial quantity. 10. 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 **BAIL APPL.NO.9391 OF 2023** **6** 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 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.” 11. 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 **BAIL APPL.NO.9391 OF 2023** **7** on the accused satisfying the twin conditions under Sec.37 of the Act. 12. 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”. ## 13. 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 **BAIL APPL.NO.9391 OF 2023** **8** 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”. 14. 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. 15. 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; **BAIL APPL.NO.9391 OF 2023** ## **9** (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”. 16. On a comprehensive appreciation of the facts and the materials on record, particularly taking into account the gravity and seriousness of the accusations levelled against the petitioner, the severity of the punishment that can be imposed on him in the event of him being found guilty, the petitioner being a history sheeter as he is involved in other crimes of similar nature, and further the contraband article is of commercial quantity, I am not at this stage satisfied that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail, so as to dilute the rigour under Sec.37 of the Act. The application is meritless and is only liable to be **BAIL APPL.NO.9391 OF 2023** **10** dismissed. 17. Nontheless, I direct the court below to consider and dispose of S.C.(NDPS) 10/2023, in accordance with law, as expeditiously as possible. Resultantly, the application is dismissed. **Sd/-** **C.S.DIAS** **JUDGE** **shg**