Noufal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946** ## **BAIL APPL. NO. 1897 OF 2024** **CRIME NO.1648/2023 OF KOTTIYAM POLICE STATION, KOLLAM** **AGAINST THE ORDER/JUDGMENT DATED 04.01.2024 IN CRMC NO.2669 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOLLAM** ## **PETITIONER/ACCUSED:** **NOUFAL, AGED 28 YEARS S/O. MUHAMMED,PUTHUPARAMBIL, NEAR POYMUKKU MASJID, PANOOR,KIZHAKKOTTU, KOZHIKODE, PIN - 670692** **BY ADVS. L.RAJESH NARAYAN N.A.JAMAL** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KOTTIYAM POLICE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031** **SR.PUBLIC PROSECUTOR SMT.NEEMA T.V.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.05.2024,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A No.1897 of 2024** 2 ## **Dated this the 23[rd] day of May, 2024** ORDER The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the sole accused in Crime No.1648/2023 of the Kottiyam Police Station, Kollam, registered against him for allegedly committing the offences punishable under Sections 22 (c) and 20(b) (ii) (A)of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 18.10.2023. 2. The on gist of the prosecution case is that, 18.10.2023, at around 5.10 hours, the accused was travelling in a bus and was found in possession of 71.60 grams of MDMA, which was kept in his inner wear. On his interrogation, he also disclosed that he had stored some contraband in his building. Accordingly, 20.49 grams of 3 ## **B.A No.1897 of 2024** hashish oil was seized from the petitioner’s residential building. Thus, the accused has committed the above offence. 3. Heard; Sri. Rajesh Narayan, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The detecting officer has violated the provisions under Sections 42 and 50 of the Act. The petitioner has not been given the copy of the chemical analysis report. In any given case, the petitioner has been in judicial custody since 18.10.2023, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. **B.A No.1897 of 2024** 4 5. The learned Public Prosecutor seriously opposed the application. She submitted that the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies. Moreover, the contention raised by the petitioner with regard to the violation of Sections 42 and 50 of the Act are matters of evidence. The said contention cannot be raised in an application filed under Section 439 of the Code. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the bail application may be dismissed. 6. The prosecution allegation against the petitioner is that he was found in possession of 71.60 grams of MDMA and 20.49 grams of hashish oil, which were seized from the petitioner’s residence. Indisputably, as per the specification under the Act 71.60 grams of MDMA falls within commercial quantity. **B.A No.1897 of 2024** 5 7. Now, coming to the question whether the contentions regarding to the violation of Sections 42 and 50 of the Act can be considered in an application filed for bail is no longer res integra in view of the categoric declaration of law by the Honourable Supreme Court and this Court in **Union of India v. MD Nawaz Khan** [2021 KHC 6503] and the decision of this Court in **Abeesh v. State of Kerala** [2022:KER:50902]. 8. In **Md Nawaz Khan’s case** , the Hon'ble Supreme Court, after considering the earlier precedents on the point, has held thus: “28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana.” ## 9. The above view has been followed by this Court in **Abeesh's** case in the following lines: “8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution **B.A No.1897 of 2024** 6 case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham’s case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan’s case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act.” 10. In the light of exposition of law in **Md Nawaz Khan's** case and **Abeesh's** case, which I fully concur, I am of the firm view that the question raised by the counsel for the petitioner and countered by the Public Prosecutor is a matter than can only be decided after the conclusion of trial and not at this nascent stage. **B.A No.1897 of 2024** 7 11. It is to be remembered that, the contraband allegedly seized from the accused is of a commercial quantity and, therefore, the rigour of Section 37 applies to the facts of the case. 12. 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 apposite to reproduce 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 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.” **B.A No.1897 of 2024** 8 13. 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. 14. 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 **B.A No.1897 of 2024** 9 are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged”. ## 15. **Md. Nawaz Khan's** case, 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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 16. 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. ## 17. 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 **B.A No.1897 of 2024** 10 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”. 18. After bestowing my anxious consideration to the fact, the rival submissions made across the Bar, and the materials placed on record, especially taking into consideration the law laid down by the Honourable Supreme Court in **Md Nawaz Khan’s** and **Abeesh's** cases, I am of the firm view that, the question whether the search and seizure were conducted in accordance with provisions of the Act is a matter of evidence and not a matter to be determined in the bail application. At any rate, on comprehending the nature, seriousness and 11 ## **B.A No.1897 of 2024** gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, that the investigation in the case is in progress, the potential severity of the punishment that is likely to be imposed on the petitioner, I am not satisfied that there are reasonable ground 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 he is enlarged on bail. Hence, I hold that the rigour under Section 37 of the Act applies to the facts of the case. Therefore, I am not inclined to enlarge the petitioner on bail. ## Resultantly, the application is dismissed. SD/- **C.S.DIAS, JUDGE** rmm/23/5/2024