Rajendran @ Gas Rajendran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940 Bail Appl..No. 5287 of 2018 -----------CRIME NO.766/2017 OF VALAPPAD POLICE STATION ## PETITIONER(S)/ACCUSED NO.1: RAJENDRAN @ GAS RAJENDRAN, AGED 55 YEARS, OCC: AGRICULTURE, S/O.SADASIVAN, MUTTUKATTIL HOUSE, NEAR NELLIKKUNNU CHURCH, KOTTARAKKARA VILLAGE, PLAPPALLY P.O., KOLLAM DISTRICT. BY ADVS.SRI.B.A.ALOOR SRI.JOHNY ANDREWS SRI.VISHNU DILEEP ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR MR. ANAS K.A. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KRJ ## **RAJA VIJAYARAGHAVAN V., J** = = = = = = = = = = = = = = = = = = B.A. No. 5287 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of August, 2018 ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 1[st] accused in Crime No.766 of 2017 registered at Valappadu Police Station, under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This is his 4[th] application before this Court. His earlier applications were all dismissed by this Court taking note of the embargo under Section 37 of the NDPS Act. 3. In this case, about 67 kgs. of Ganja were seized from the possession of accused Nos.1 to 4. The applicant as well as the 1[st] accused were found inside a car and about 25.79 kgs. of Ganja were seized from dickey of the car. From the pick-up van in which the accused Nos. 3 and 4 were travelling, 42.730 kgs. of Ganja were seized. 4. The learned counsel appearing for the applicant vehemently submitted that on merits, the applicant has a good **-:2:-** BA.5287/18 case. According to the learned counsel, what was seized from the possession of the accused Nos.1 and 2 is 25.790 kgs. and the quantity seized from the possession of the applicant would be just under 20 kgs. In that view of the matter, according to the learned counsel, the embargo under Section 37 of the Act would not be attracted as the quantity seized is only intermediate in nature. It is further submitted that the mandatory procedures with regard to search and seizure have been violated by the investigating officer concerned. According to the learned counsel, the wife of the applicant was suffering from inguinal hernia and she was admitted in the GEMS Hospital. On an earlier occasion, taking note of the said medical condition of his wife, this Court had granted escort parole for three days. The applicant was permitted to visit his wife for about 6 hours a day. It is submitted that the doctor has now referred the wife of the applicant to the Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram where she is slated to undergo device closure. According to the learned counsel, except for the applicant, there are no others to support his wife. It is prayed that the applicant be granted bail and he be **-:3:-** BA.5287/18 permitted to be with his wife. 5. Heard the learned Public Prosecutor who has opposed the prayer. It was submitted that a massive quantity of ganja was brought from Chattisgarh to Thrissur by the applicant and the rest of the accused. The applicant herein is a hardened criminal with involvement in numerous cases and he has also been convicted in as many as three crimes in the State of Tamil Nadu. The learned Public Prosecutor referred to the decisions of the Apex Court in **Union of India (UOI)** v. **Shri Shiv Shanker Kesari** [(2007) 7 SCC 798] and **Union of India** v. **Ram Samujh and Another** [(1999) 9 SCC 429] to support his contentions. Referring to the decision of the Apex Court in **SUPDT., Narcotics Control Bureau, Chennai** v. **R. Paulsamy** [(2000) 9 SCC 549] it was contended that the question of noncompliance of mandatory formalities are not to be considered at the stage of deciding the bail application in view of Section 37 of the Act. 6. I have considered the submissions advanced and have gone through the materials made available. BA.5287/18 ## **-:4:-** 7. The applicant is a habitual offender with involvement in several crimes registered in the State and outside. His contention that he could be held responsible only for one half of the quantity seized from the possession of the accused cannot be accepted. The specific case of the prosecution is that a large quantity of the contraband was brought from outside the State by the applicant and others and that he was a party to a criminal conspiracy to commit an offence punishable under Chapter IV of the NDPS Act, 1985. The accused No.1 and the applicant were found together in a car and 25.79 kgs were seized from their possession. Prima facie, there is nothing to doubt the case of the prosecution that the accused had acted in tandem to import the contraband and sell it in the State. 8. It is by now settled that the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) BA.5287/18 ## **-:5:-** of the Act is “reasonable grounds” which 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. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. 9. Having considered the submissions advanced and after having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that **-:6:-** BA.5287/18 the accused is not guilty of the offence charged. Owing to the antecedents of the applicant and his involvement in narcotic cases, it would not be possible to conclude that he is not likely to commit any offence while on bail. The applicant has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. 10. Insofar as the ailment to the wife of the applicant is concerned, the records produced before this Court would show that she has been asked to report before the Sree Chitra Tirunal Institute for Medical Sciences and Technology on 9.9.2018 for emergency device closure of Atrial Septal Defect (ASD). The applicant had approached this Court earlier when his wife was slated to undergo a surgery for inguinal hernia. On humanitarian considerations, he was granted escort parole for three days by Annexure-A2 order. The procedure for closure has only been tentatively posted to 7.9.2018. The learned Sessions Judge has referred to the statement by the doctor of GEM hospital that only one day hospitalisation would be required for the surgery. There are no materials before me to show otherwise. **-:7:-** BA.5287/18 11. While considering an application for bail, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level. This application will stand dismissed. Sd/- Raja Vijayaraghavan V., Judge krj.10/8 //true copy// P.A. To Judge