Rameez Roshan v. State of Kerala & Excise Circle Inspector-II, Excise Crime Branch, North Zone, Kozhikode

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 8387 OF 2023` ``` CRIME NO.50/2023 OF EXCISE CRIME BRANCH (NORTH ZONE), KOZHIKODE, ``` ## `KOZHIKODE` ## `PETITIONER:` ``` RAMEEZ ROSHAN, AGED 28 YEARS S/O ABDUL RASAK, KALATHINGAL AL HARAMA HOUSE, VALLIKUNNU, KOZHIKODE-673019 ``` ``` BY ADVS.K.M.SATHYANATHA MENON P.ARUN KUMAR (MONCOMPU) M.S.SARUN ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 ``` ``` 2EXCISE CIRCLE INSPECTOR- II, EXCISE CRIME BRANCH, NORTH ZONE, KOZHIKODE-673020 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.8387/2023_ _-:2:-_ Dated this the 12[th] day of March, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.50/2022 of the Excise Crime Branch, North Zone, Kozhikode, registered against the accused(two in number) for allegedly committing the offences punishable under Sections 22(c), 22(b), 20(b)(ii)(A) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). 3. The crux of the prosecution case is that; On 21.11.2022, on getting secret information, the Excise Crime Branch seized a courier parcel addressed to the first accused, which contained 3.25 grams of LSD, 10.02 grams of MDMA and 05 grams of ganja. During _B.A.No.8387/2023_ _-:3:-_ the course of interrogation of the first accused, it was unveiled that the contraband was sent to by him for the second accused. The investigation has unveiled that there are incriminating materials to prove the involvement of the second accused. Thus, the accused have committed the above offences. 3. Heard; Sri. K.M. Sathyanatha Menon, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime by the Investigating Officer out of his previous animosity. There is no material to link the petitioner with the present crime other than for the extra judicial confession of the first accused which is hit by the law laid down by the Hon'ble Supreme Court _B.A.No.8387/2023_ _-:4:-_ in **Tofan Singh v. State of Tamil Nadu** [(2021) 4 SCC 1]. This Court, by order dated 11.10.2023, has directed the petitioner not to be arrested since he is undergoing trial in S.C.No.1198/2021 before the Special Judge for SC/ST [POA] Act cases, Manjeri, for allegedly committing the offence under the NDPS Act. The petitioner has all throughout been insulated with the orders of this Court. The Investigating Officer has already filed a split charge against the first accused. Hence, no recovery is to be effected. Therefore, there is no legal bar in granting the petitioner an order of pre-arrest bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter-alia, contending that there are incriminating materials to prove the involvement of the petitioner in the crime. The Officer has stated that there were Investigating _B.A.No.8387/2023_ _-:5:-_ frequent telephone communications between the petitioner and the first accused. The investigation has also unveiled that the petitioner used to constantly contact the courier company to enquire about the parcel. The first accused has confessed that the parcel was received by him for and on behalf of the petitioner. The petitioner's custodial interrogation is necessary and recovery is to be effected. As the contraband involved is of a commercial quantity, the application is hit by the rigour under Section 37 of the NDPS Act. Hence, the application may be dismissed. 6. On a scrutiny of the materials placed on record, it can be gathered that the contraband that is involved in the case is of a commercial quantity. The bail objection report filed by the Investigating Officer prima-facie establishes that there are incriminating materials, other than for the extra judicial confession of the first accused, to establish the involvement of the _B.A.No.8387/2023_ _-:6:-_ petitioner in the crime. It is also revealed that the petitioner is an accused in S.C.No.1198/2021 pending before the Special Judge, Manjeri, for allegedly committing a similar offence under Section 22(c) of the NDPS Act. 7. Indisputably, the contraband that has been seized is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies. 8. 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 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 _B.A.No.8387/2023_ _-:7:-_ 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 subsection (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. 9. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the NDPS Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are 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 NDPS Act is subject to provisions contained under Section 439 of _B.A.No.8387/2023_ _-:8:-_ the Code and on the accused satisfying the twin conditions under Section 37 of the NDPS Act. 10. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the NDPS 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”. 11. 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 NDPS Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to _B.A.No.8387/2023_ _-:9:-_ 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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 12. It is also well-settled that in addition to applying the rigour under Section 37 of the NDPS Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 13. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable 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 _B.A.No.8387/2023_ _-:10:-_ 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”. ## 14. It is trite law in **Dheeraj Kumar Shukla v.** **The State of Uttar Pradesh** [2023 KHC 6545]that the second limb of Section 37 of the NDPS Act would be satisfied, if the petitioner has no criminal antecedents. 15. The two limbs of the above provision have to be read conjunctively. Even assuming that there are no material to substantiate or link the petitioner’s active involvement in the present crime, indisputably the petitioner is a person with criminal antecedents. Therefore, he fails to satisfy the second limb of Section _B.A.No.8387/2023_ _-:11:-_ ## 37 of the NDPS Act. 16. On a meticulous scrutiny of the factual matrix, the law referred to above, and on comprehending the gravity, nature and seriousness of the accusation levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the commercial quantity of the contraband involved in the case, the petitioner is a person with criminal antecedents and there are sufficient materials to substantiate the petitioner’s involvement in the present crime and, further, the petitioner's custodial interrogation is necessary and recovery is to be effected, I am at this stage satisfied that there are no reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if enlarged on bail, so as to dilute the rigour under Section 37 of the NDPS Act. I hold that the _B.A.No.8387/2023_ _-:12:-_ application is meritless and is only to be rejected. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/12.03.24 //True copy// P.A. To Judge