Prajosh P v State of Kerala; Abhilash v State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** **BAIL APPL. NO. 256 OF 2024** **CRIME NO.706/2023 OF Nallalam Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT CRMP 1089/2023 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA** ## **PETITIONER/S:** PRAJOSH P, AGED 44 YEARS S/O IMBICHIKUTTYI,KALATHILTHODI (HOUSE),NALLOOR,FEROKE,KOZHIKODE DIST, PIN - 673631 BY ADV M.DEVESH ## **RESPONDENT/S:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** pp smt nima jacob THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, ALONG WITH Bail Appl..207/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 256 & 207 OF 2024 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 BAIL APPL. NO. 207 OF 2024** **CRIME NO.706/2023 OF Nallalam Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT CRMP 1183/2023 OF SPECIAL COURT** **(NDPS ACT CASES), VADAKARA** ## **PETITIONER/S:** ABHILASH, AGED 26 YEARS S/0 MURALEEDHARAN, OLASSERIPARAMBA FAROOK COLLEGE(PO), KOTTAMANGALAM, KOZHIKODE, PIN - 673632 BY ADVS. T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN ALEX ABRAHAM SWETHA R. HARIKRISHNAN P.B. ## **RESPONDENT/S:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, ALONG WITH Bail Appl..256/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 256 & 207 OF 2024 3 ## **COMMON ORDER** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.706/2023 of the Nallalam Police Station, Kozhikode, registered against the accused (three in number) for allegedly committing the offences punishable under Section 22(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioners were arrested on 28.09.2023. 2. The essence of the prosecution case is that: around 13 hours on 28.09.2023, the accused were found in conscious possession of 100.1 grams of MDMA which was transported in a motor car bearing No.KL-11-BE-7585 through Meenchanda-Cheruvannur road. The accused have conspired together and possessed the contraband article in violation of the provisions of the Act. Thus, the accused have committed the above offences. 3. Heard; Sri.M.Devesh and Sri.T.K.Sandeep, the learned counsel appearing for the petitioners and Smt.Nima Jacob, the learned Senior Public Prosecutor. BAIL APPL. NO. 256 & 207 OF 2024 **==> picture [7 x 9] intentionally omitted <==** 4. The learned counsel appearing for the petitioners in unison submitted that the petitioners are absolutely innocent of the accusation leveled against them. They have been falsely implicated in the crime. The petitioners are in judicial custody since 28.09.2023. The investigation in the case is practically complete and recovery has been effected. Hence, the petitioners' further detention is not necessary. In addition to the above submission, the learned counsel appearing for the 2[nd] accused submitted that the 2[nd] accused is only a Driver by profession. He had gone on a trip to Bangalore as requested by the 1[st] accused. The 2[nd] accused was unaware that any contraband was allegedly kept in the camera. The 2[nd] accused's mother has lodged a complaint before the Police against his false implication in the crime. Hence, the application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the investigation in the case is in progress. The petitioners were found in conscious possession of a commercial quantity of the contraband article. Nonetheless, she BAIL APPL. NO. 256 & 207 OF 2024 5 conceded to the fact that in the chemical analysis that was conducted, it has been certified that the contraband is not MDMA but methamphetamine. Nonetheless, since the quantity is of 100.1 grams, the same is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused 1 to 3 were found in conscious possession of 100.1 grams of MDMA which has been transported in the car in which the petitioners traveled. It has turned out that the contraband is not MDMA, but methamphetamine. But, still the contraband is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies. 6. 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 BAIL APPL. NO. 256 & 207 OF 2024 6 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.” 7. 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 BAIL APPL. NO. 256 & 207 OF 2024 7 Act. 8. 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”. ## 9. 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 BAIL APPL. NO. 256 & 207 OF 2024 8 NDPS Act have been prescribed”. 10. 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. 10. 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) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. After bestowing my anxious consideration to the fact, BAIL APPL. NO. 256 & 207 OF 2024 **==> picture [7 x 9] intentionally omitted <==** the materials placed on record, the rival submissions made across the Bar and also the law referred to in the afore cited decisions and on comprehending the nature, seriousness and gravity, the accusation leveled against the petitioners, that the investigation in the case is in progress and that the contraband is of a commercial quantity, I do not find any reasonable ground to hold that the petitioners have not committed the offences alleged against them and that they are not likely to commit the offence of a similar nature, if they are enlarged on bail. Therefore, I hold that the rigour under Section 37 of the Act applies to the facts and circumstances of the case. The application is meritless and is only to be rejected. Resultantly, the applications are dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/15.02.24 BAIL APPL. NO. 256 & 207 OF 2024 10 ## **APPENDIX OF BAIL APPL. 207/2024** PETITIONER ANNEXURES Annexure I TRUE COPY OF THE CERTIFICATE DATED 09.10.2023 ISSUEDBYTHEMANAGER OF CENTURY TRADING COMPANY Annexure II TRUECOPY OF THE COMPLAINT DATED 10.10.2023 SUBMITTED TO DISTRICT POLICECHIEF KOZHIKODE Annexure III TRUE COPY OF THE RECEIPT DATED 10.10.2023 ISSUED BY THEOFFICEOFTHE DISTRICT POLICE CHIEF ACKNOWLEDGING THE RECEIPT OF THECOMPLAINT Annexure IV TRUE COPYOF THEORDER DATED 26.10.2023 IN CRL.M.P.NO.1027/2023 ON THEFILESOF THESPECIAL JUDGE (N.D.P.S. ACT CASES), VATAKARA Annexure V FAIR COPY OF THE ORDER DATED13.12.2023 IN CRL.M.P.NO.1183/2023 ON THE FILES OF THESPECIAL JUDGE (N.D.P.S. ACT CASES), VATAKARA Annexure VI TRUE COPY OF THE ULTRA SOUND EXAMINATION REPORT ISSUED FROM ASWINI POLY CLINIC DATED 27.10.2023 OF THE WIFE OF THEPETITIONER BAIL APPL. NO. 256 & 207 OF 2024 11 ## **APPENDIX OF BAIL APPL. 256/2024** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF FIR AND FIS DATED 28/09/2023 ON THE FILES OF NALLALAM POLICE STATION Annexure 2 TRUE COPYOF ORDER DATED 17/11/2023 IN CRL MP 1089/2023 ON THE FILES OF SPECILA COURT NDPS VADAKARA