Pritham v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 BAIL APPL. NO. 1794 OF 2023** **CRIME NO.02/2023 OF MANJESHWAR POLICE STATION, KASARGOD** ## **PETITIONER/ACCUSED NO.2:** **PRITHAM AGED 28 YEARS S/O THARANATH, R/AT BABY HOUSE, PERMANNUR,THEKOTTU, MANGALORE, KARNATAKA, PIN - 575017** **BY ADV P.RAKESH THAMBAN** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SRI.P G MANU, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1794 OF 2023** **2** ## **ORDER** Dated this the 7[th] day of March, 2023 This is an application for regular bail moved by the second accused in crime No.2/2023 of Manjeshwar police station, Kasargod. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents forming part of the case diary placed by the learned Public Prosecutor. 4. The prosecution allegation is that at about 02:08 am on 01.01.2023, accused Nos.1 to 3 in this crime were nabbed by the police along with 12.10 gram of MDMA while they were jointly transporting the same on a TVS scooter bearing registration No.KA-19 HN 5585. Pursuant to the recovery and arrest of the petitioners, crime alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as **BAIL APPL. NO. 1794 OF 2023** **3** ‘the NDPS Act’ for convenience) was registered and the same is on investigation. 5. The learned counsel for the petitioner/the 2[nd] accused in this crime zealously argued to convince this Court that the petitioner is innocent and there is non-compliance of Section 42(2) of the NDPS Act in this crime. He also submitted that even though the prosecution alleges the contraband as ‘MDMA’, if it is found to be 'Methamphatamine', the offence would attract in this case is not under Section 22(c) of the NDPS Act, but under Section 22(b) of the NDPS Act. Further, the learned counsel for the petitioner highlighted custody of the petitioner from 01.01.2023 and the progress of investigation as grounds to grant regular bail. 6. Opposing this contention, the learned Public Prosecutor would submit that the recovery of the contraband in this case is a chance recovery as part of vehicle checking done on the new year day (01.01.2023). Therefore, **BAIL APPL. NO. 1794 OF 2023** **4** compliance under Section 42(1) does not arise in this case. It is further submitted that in so far as compliance of Section 42(2) of the NDPS Act is concerned, such report already forwarded and therefore, there is no non-compliance of the mandate of Section 42(2) of the NDPS Act, as contended. Since the contraband is commercial quantity, the rigour under Section 37 of the NDPS Act would apply. Therefore, this Court cannot grant bail without satisfying the twin conditions provided therein. 7. On perusal of the case records, it is discernible that accused Nos.1 to 3 were arrested while they were possessing and transporting commercial quantity of MDMA and they were nabbed red handedly and crime was registered. So the available materials would go to show that accused Nos. 1 to 3 jointly transported the contraband and the contraband involved is of commercial quantity. This Court cannot grant bail merely on hypothesis, in consideration of the argument at the **BAIL APPL. NO. 1794 OF 2023** **5** instance of the counsel for the petitioner that the contraband may be 'Methamphatamine' till the moment it will be found so by the chemical examiner. No doubt, since the contraband is commercial quantity, the rigour under Section 37 would apply. 8 In so far as grant of regular bail to the accused who was nabbed on the allegation of possession of commercial quantity of contraband, Section 37 of the NDPS Act would squarely apply. 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,_ **BAIL APPL. NO. 1794 OF 2023** **6** _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._ 9. 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. 10. 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 **BAIL APPL. NO. 1794 OF 2023** **7** 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. 11. 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. 12. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the **BAIL APPL. NO. 1794 OF 2023** **8** 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 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 **BAIL APPL. NO. 1794 OF 2023** **9** 2020(1), Ker.848]. Latest Decision on this point is **Union of India v. Jitentra Giri** (2023 Crl.LJ 799) 13. 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 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. 14. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the **BAIL APPL. NO. 1794 OF 2023** **10** 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, application for regular bail at the instance of the petitioner must fail. Hence this petition stands dismissed. ## **Sd/-** **A. BADHARUDEEN JUDGE** nkr