Rameez Manoj v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 BAIL APPL. NO. 8082 OF 2022 ``` ``` CRIME NO.864/2022 OF PANDALAM POLICE STATION, PATHANAMTHITTA PETITIONER/ACCUSED NO.7: ``` ``` RAMEEZ MANOJ AGED 23 YEARS S/O.MANOJ V. SALAM, THENAMAKKAL HOUSE, NEAR FIRE STATION, VATTAKAPPARA, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT, PIN - 686510 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ANILKUMAR C.R. ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 864/2022 OF PANDALAM POLICE STATION, PATHANAMTHITTA - 689501), PIN – 682031 BY P.G.MANU, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 2 ``` ## **O R D E R** Dated this the 27[th] day of February, 2023 This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the 7[th] accused in crime No.864/2022 of Pandalam police station, where accused alleged to have committed offences punishable under Sections 22(c), 60(3), 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the case diary along with relevant materials placed by the learned Public Prosecutor as well as the learned counsel for the petitioner. 4. Precisely, the prosecution case is that accused herein hatched conspiracy and thereafter accused Nos. 1 to 5 have kept 151.490 gm of MDMA at River Walk Hotel, near ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 3 ``` Manikandan Althara Junction, Pandalam Municipality and the Pandalam police seized the contraband and arrested accused Nos.1 to 5. The further allegation is that for the purchase of contraband, accused Nos.1, 4 and 5 went to Bangalore and met accused No.6 and credited money in the account maintained by 7[th] and 8[th] accused, who are intermediaries for buying MDMA. Accordingly, MDMA was purchased and possessed. 6. The present bail application is at the instance of the 7[th] accused. According to the learned counsel for the petitioner, there is anomaly in the prosecution case starting from the registration of FIR and inclusion of the present petitioner as an accused. The learned counsel also pointed out delay in registering the FIR after detection of the crime at 15.55 hours on 30.07.2022 and registration of crime at 03.25 hours on 31.07.2022. It is submitted further that since nothing recovered from the conscious possession of the 7[th] accused ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 4 ``` and the prosecution relies on confession statement and bank statements as the basis to implicate the 7[th] accused. In such a case, the rigour under Section 37 of the NDPS Act would not apply. Therefore, the petitioner, who has been in custody for the last 192 days, deserves bail. He also would submit that there may be bank transaction between the 7[th] accused and other accused prior to the detection, but the same was for the purpose of sale of vehicle and therefore, the petitioner has no involvement. 7. Whereas the learned Public Prosecutor zealously opposed bail and pointed out the involvement of the 7[th] accused in this crime in detail. Thereby the learned Public Prosecutor further pointed out the rider under Section 37 of the NDPS Act. In the report, it has been stated that 7[th] accused is the person who had been studying for PG course in Bangalore and a close friend of accused Nos.6 and 8 arranged MDMA which was recovered from accused Nos. 1 to ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 5 ``` 5. 8. On evaluation of the relevant records, it is discernible that during investigation, it was found that the 2[nd] accused while studying for PG course in Bangalore maintained friendly relationship with accused Nos.6, 8 and 9 and worked as a mediator in the transport of MDMA. On scrutiny of the bank statements maintained by the 7[th] accused at Federal Bank, Kanjirappally, it was found by the Investigating Officer that in between 01.01.2022 to 10.08.2022, Rs.37,21,674/- deposited in the account of the 7[th] accused and out of which, Rs.37,13,992/- was withdrawn. The further allegation is that as on 28.07.2022 when the 2[nd] accused went to Bangalore to purchase MDMA, Rs.35,000/was deposited by the 2nd accused in the name of the 7[th] accused. Similarly, the first accused also deposited Rs.35,000/- on 29.07.2022; 8[th] accused deposited Rs.55,000/(Rs.24,000 + 31,000) as on 29.07.2022. ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 6 ``` 9. When the call details pertaining to the mobile number alleged to be used by the 7[th] accused was verified, constant calls in between them during the time of transaction and just prior to the transaction also noticed. Thus, the prosecution case as to involvement of this petitioner who dealt with a huge amount of money coming to the tune of Rs.37,21,674/- during the relevant period is well established, _prima facie._ In such a case, the prosecution allegation as to involvement of the petitioner in this crime as the middleman, who transported the contraband could not be disbelieved at this stage. However, the petitioner can take this contention during trial by adducing evidence. Although it is submitted by the learned counsel for the petitioner that another learned Judge of this Court granted regular bail to the petitioner, on perusal of the order, there is no discussion to satisfy the conditions provided under Section 37 of the NDPS Act. In a recent decision of the Apex Court reported in **2023 Crl.LJ 799, Union of India v.** ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 7 ``` **Jitentra Giri,** the Apex Court set aside an order of bail granted by the High Court for non discussion regarding interdiction of Section 37 of the NDPS Act. Therefore, grant of regular bail to accused No.3 could not have any binding effect. 10. 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.8082 OF 2022 ``` ``` 8 ``` _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._ 11. 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. 12. 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.8082 OF 2022 ``` ``` 9 ``` 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. 13. 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. 14. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 10 ``` 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.8082 OF 2022 ``` ``` 11 ``` 2020(1), Ker.848]. Latest Decision on this point is **Union of India v. Jitentra Giri** (2023 Crl.LJ 799) 15. 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. 16. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 12 ``` 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 ``` BAIL APPL.NO.8082 OF 2022 ``` ``` 13 ``` ## **`APPENDIX OF BAIL APPL. 8082/2022`** ``` PETITIONER ANNEXURES Annx-IA ``` ``` A TRUE COPY OF THE FIR IN CRIME NO.864/2022, REGISTERED BY PANDALAM POLICE STATION, PATHANAMTHITTA, DATED 31-07-2022 ``` ``` Annx-IITHE CERTIFIED COPY OF THE ORDER DATED 24-09-2022, BY ADDL.SESSIONS JUDGE, PATHANAMTHITTA, IN CRIME NO.864/2022 AND CRL.MP.NO. 3941/2022(COMMON ORDER) ```