Rajendran v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939 Bail Appl..No. 8878 of 2017** **CRIME NO.766/2017 OF VALAPPAD POLICE STATION, THRISSUR.** **...** ## **PETITIONER/ACCUSED NO.1:** **RAJENDRAN, AGED 54 YEARS, S/O. SIDASIVAN, MUTTAKKATHIL HOUSE, NEAR NELLIKUNNU CHURCH, PLAPPILLI P.O, KOTTARAKARA, KOLLAM DISTRICT.** **BY SRI.B.RAMAN PILLAI (SENIOR ADVOCATE) ADVS.SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.E.VIJIN KARTHIK** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31.** **BY PUBLIC PROSECUTOR SRI.SAJJU. S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## RAJA VIJAYARAGHAVAN V., J = = = = = = = = = = = = = = = = = = B.A. No. 8878 of 2017 = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of January, 2018 ## O R D E R - 1.The 1[st] accused Crime No.766 of 2017 of the Valappad Police Station is the petitioner herein. He seeks his enlargement on bail in the crime which was registered under Section 20(b)(ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2.The alleged detection was on 27.5.2017 and it was by the Station House Officer, Valappad Police Station. Secret information was received by the detecting officer about the storage for the purpose of sale of contraband substance in a car bearing Reg.No. KL-24/E-1406 and a pick-up van bearing Reg.No.KL-09/M-2430 which were parked at Kothakulam Beach. After complying with all the formalities, the vehicles were intercepted and search was conducted. Accused Nos. 1 and 2 were found inside the car and search of the vehicles resulted in the seizure of 25.790 kg of Ganja from the dickey ## BA:8878/17 ## **-:2:-** of the car. Thereafter, the pick-up van in which the accused No 3 and 4 were travelling was searched. From a secret compartment in the cabin Platform, 42.730 kg of Ganja was seized. The contraband articles were sealed and labelled in accordance with the procedure prescribed and the accused were arrested. Investigation was conducted by the Circle Inspector of Police and on its completion, final report was laid on 31.7.2017 before the Court of Session, Thrissur. The case is now pending as S.C. No 748 of 2017 on the file of the Additional Sessions Judge-I , Thrissur - 3.Heard the learned Senior Counsel appearing for the petitioner as well as the learned Public Prosecutor. - 4.It is submitted by the learned Senior Counsel that the petitioner is innocent of the allegations. There are fatal procedural flaws in the detection of the contraband. The final report was laid even prior to receipt of the report of chemical examination which fact alone is sufficient to conclude that the investigation was biased and lop sided. The petitioner has been in judicial custody since 27-5-2017 and further detention, in the facts and circumstances, is not justified. BA:8878/17 ## **-:3:-** 5.The learned Public Prosecutor, while opposing the prayer submitted that the accused No 3 and 4 had approached this Court seeking bail and this Court had dismissed the said application by order dated 13.1.2018. It is further urged that more than 20 kgs of Indian hemp classified as “commercial quantity” was seized from the possession of the petitioner. The parameters of Section 37 of the NDPS Act, 1985 will have to be satisfied. Unless there are reasonable grounds for believing that the accused are not guilty of the offence and that they are not likely to commit any offence while on bail, the petitioner can be released. Highlighting the deleterious effects and deadly impact of such substances, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by traffickers such as the petitioners. The learned Public Prosecutor placed reliance on 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. - 6.I have considered the submissions advanced and have gone through the materials on record. BA:8878/17 ## **-:4:-** 7.The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. A reference to Section 37 of the Act will be apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus: " **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 a term of imprisonment of five years or more under this Act 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. 8.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. It can be granted in a case where there are reasonable grounds for believing that the BA:8878/17 **-:5:-** accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b) (ii) is “reasonable grounds” which expression means something more than prima facie grounds. As held in **Shiv Shanker Kesari** (supra), it connotes substantial probable causes for believing that the accused are 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 are not guilty of the offence charged. However, this Court while considering the application for bail with reference to Section 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 are 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. BA:8878/17 **-:6:-** The court has also to record a finding that while on bail the accused are not likely to commit any offence and there should also exist some materials to come to such conclusion. Having considered the submissions and after having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. The petitioner 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. - 9.The contention of the learned Senior Counsel that there has been some procedural violations which would entitle the petitioner to be released on bail cannot be accepted. In Supdt., NCB , Chennai Vs. R.Paulswamy (2001 Cri.L.J.117), the Apex Court had occasion to hold this : "In the light of Section 37 no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. Adopting the exceptional course of granting bail to an accused involved in the offence under NDPS Act on ground that there was prima facie violation of Section 52 and there was prima facie noncompliance with Section 57 of the Act, was not **-:7:-** BA:8878/17 proper. Compliance of Ss.52 and 57 is matter which could be established only at the trial and could not be prejudged at the stage of consideration for bail. The minimum which the lower Court should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court during bail stage regarding the compliance of the formalities mentioned in those two sections. The lower Court even had not recorded a finding in terms of Section 37 of the Act which is sine qua non for granting bail to an accused involved in the offence under the Act. In that view of the matter, I am of the view that the petitioner is not entitled to be released on bail at this stage. I find no merit in this petition and the same is dismissed. Sd/- **Raja Vijayaraghavan V., Judge** krj.18/1 //true copy// P.A to Judge