Raveender Padhan and Jikkariya Jani v. State of Kerala

**==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:7571 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5470 OF 2024 ``` ``` CRIME NO.1008/2023 OF PATTAMBI POLICE STATION, PALAKKAD ``` ## `PETITIONERS:` ``` 1RAVEENDER PADHAN, AGED 24 YEARS S/O RAMESH PRADHAN , LUHAGUDI, DNGNIPADAR, LUHAGUDI, GAGAPADI, ODISHA, PIN - 761015 2JIKKARIYA JANI, AGED 24 YEARS S/O GODAI JANNI, LUHAGUDI,KECHPANKA,VTC, LUHAGUDI POST, LUHAGUDI, SUB DISTRICT, GAJAPATHI, ODISHA, PIN - 761015 BY ADVS. REGHU SREEDHARAN JISSMON A KURIAKOSE ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5470/2024_ _-:2:-_ _Dated this the 5[th] day of August, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity),, by the accused Nos.1 & 2 in Crime No.1008/2023 of the Pattambi Police Station, Palakkad, which is registered against them, for allegedly committing the offence punishable under Section 20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short, ‘NDPS Act’). The petitioners were arrested and remanded to judicial custody on 13.11.2023. 2. The gist of the prosecution case is that; on 13.11.2023, at around 23.55 hours, the accused were found in conscious possession of 49.320 Kgs. ganja. The accused were arrested on the spot with contraband article. Thus, the accused have committed the above offence. _B.A.No.5470/2024_ _-:3:-_ 3. Heard; Sri. Reghu Sreedharan, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no material to substantiate that the petitioners have committed the offence. The Investigating Officer has deliberately implicated the petitioners in the crime. In any given case, the petitioners have been in judicial custody for the last 250 days, the investigation in the case is complete, and the final report has been laid. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter-alia, contending that the _B.A.No.5470/2024_ _-:4:-_ petitioners were arrested on the spot with the contraband article. The contraband is of a commercial quantity. Therefore, the rigor under Section 37 of the NDPS Act applies to the facts and circumstances of the case. There are no reasonable grounds to dilute the rigour under Section 37 of the NDPS Act. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that, they were arrested with 49.320 Kgs. of ganja, which is of a commercial quantity. 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 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 _B.A.No.5470/2024_ _-:5:-_ 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 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 the Code and parameters referred to above and on the _B.A.No.5470/2024_ _-:6:-_ accused satisfying the twin conditions under Section 37 of the NDPS 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”. ## 10. In **State of Kerala and others v. Rajesh and** ## **others** [(2020) 12 SCC 122], the Honourable Supreme Court has held as follows: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In _Union of India_ v. _Ram Samujh_ [ _Union of India_ v. _Ram Samujh_ , (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “ _7_ . It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It _B.A.No.5470/2024_ _-:7:-_ should be borne in mind that in a murder case, the accused commits murder of one or two persons, while death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in _Durand Didier_ v. _State (UT of Goa)_ [ _Durand Didier_ v. _State (UT of Goa)_ , (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘ _24_ . With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ _8_ . To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory _B.A.No.5470/2024_ _-:8:-_ conditions provided in Section 37, namely, ( _i_ ) there are reasonable grounds for believing that the accused is not guilty of such offence; and ( _ii_ ) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object _B.A.No.5470/2024_ _-:9:-_ of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act”. 11. As observed in **Rajesh's** case (supra), 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. 12. 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 plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in _B.A.No.5470/2024_ _-:10:-_ 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. Indisputably, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts of the case. 14. On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioners, the potential severity of the punishment that can be imposed on the petitioners, the commercial quantity of the contraband involved in the case and the prima facie material that show the _B.A.No.5470/2024_ _-:11:-_ petitioners’ involvement in the crime, I am not satisfied that there are reasonable grounds to hold that the petitioners are not guilty of the offence alleged against them and that they are not likely to commit similar offences if they are enlarged on bail. The petitioners have not made out any valid ground to dilute the rigour under Section 37 of the NDPS Act. The application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/05.08.24 //True copy// P.A. To Judge