Rajeev Kumar v. State of Kerala & Intelligence Officer, Directorate of Revenue Intelligence, Calicut Regional Unit

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 815 OF 2024`** ``` CRIME NO.6/2023 OF DIRECTORATE OF REVENUE INTELLIGENCE CALICUT REGIONAL UNIT, KOZHIKODE ``` ## **`PETITIONER/ACCUSED:`** ``` RAJEEV KUMAR, AGED 27 YEARS C/O OMKAR SINGH, HOUSE NO.51, NAGWA, MUZAFFARNAGAR, UTTAR PRADESH, PIN - 251309 BY ADVS. SHIBU VARGHESE BASIL JOY MINNU BABU ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, CALICUT REGIONAL UNIT, ASOKAPURAM, CALICUT, PIN - 673006 BY ADV SRI. S.MANU – STANDING COUNSEL SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.815 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 815 OF 2024 ------------------------------------------------------Dated this the 7[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the sole accused in Crime No.6/2023 of the Directorate of Revenue Intelligence (DRI), Calicut Regional Unit, Kozhikode registered against the accused for allegedly committing the offence punishable under Section 21(c) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 28.08.2023. 2. The essence of the prosecution case is that: based on an intelligence report that the accused was arriving at the Calicut International Airport at 3.45 ``` 3 ``` ## **`BAIL APPL. NO.815 OF 2024`** hours on 28.08.2023 by Air Arabia Flight No.G9454, the officers of the Directorate of Revenue Intelligence, in the presence of the independent witnesses, intercepted the accused at the arrival hall and conducted a search and recovered 3490.49 grams of cocaine and 1296.2 grams of heroin, which were concealed in two file bags, one shopper hand bag, four purses, four pairs of shoes and two picture boards. The Chemical Analysis Report turned out that the contraband articles were cocaine and heroin. Thus, the accused has committed the above offences. 3. Heard; Sri. Shibu Varghese, the learned counsel appearing for the petitioner, Smt. Neema T. V, the learned Public Prosecutor appearing for the State and Sri. S. Manu, the learned Standing Counsel appearing for the DRI. ``` 4 ``` ``` BAIL APPL. NO.815 OF 2024 ``` 4. The learned counsel appearing for the petitioner submitted that, petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The entire search and seizure of the contraband was conducted in violation of the provisions of the Act. In any given case, the petitioner has been in judicial custody since 28.08.2023, the investigation in the case is complete and the recovery has been effected. Hence, the petitioner’s further detention is unnecessary. Therefore, the petitioner may be released on bail. 5. The learned Standing Counsel opposed the application. The Investigating Officer has filed a bail objection report, inter alia contending that the contraband articles were seized from the conscious possession of the petitioner. The contraband article is of a commercial quantity. Therefore, the rigour under ``` 5 ``` ## **`BAIL APPL. NO.815 OF 2024`** Section 37 of the Act applies to the facts of the case. The investigation of the case is completed and the final report has been filed on 21.02.2024. If the petitioner is released on bail, there is every likelihood of him committing similar offenecs. Likewise, the petitioner has no roots in the State of Kerala. Hence, the application may be dismissed. 6. On an analysis of the materials placed on record, it can be gathered that a commercial quantity of cocaine and heroin, which are psychotropic substances, were seized from the conscious possession of the petitioner. Therefore, Section 37 of the Act applies to the facts of the case. 7. 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 ``` 6 ``` ``` BAIL APPL. NO.815 OF 2024 ``` ## 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 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.” 8. 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 that there are satisfied ``` 7 ``` ## **`BAIL APPL. NO.815 OF 2024`** 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. 9. 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”. ``` 8 ``` ``` BAIL APPL. NO.815 OF 2024 ``` 10. 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 NDPS Act have been prescribed”. 11. 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. 12. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable ``` 9 ``` ``` BAIL APPL. NO.815 OF 2024 ``` 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” 13. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, the law referred to in the afore said decisions and on comprehending the ``` 10 ``` ``` BAIL APPL. NO.815 OF 2024 ``` nature, seriousness and gravity of the accusations levelled against the petitioner, the contraband is of a commercial quantity and the potential severity of the punishment that is likely to be imposed on the petitioner, I do not find any reasonable ground to hold that the petitioner has not committed the offences alleged against him and that he is not likely to commit the offence of a similar nature, if he is 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 application is dismissed. **Sd/C.S. DIAS JUDGE** BR