Raveendran P. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945 BAIL APPL. NO. 3167 OF 2023** **CRIME NO.777/2022 OF KONDOTTY POLICE STATION** ## **PETITIONER/9TH ACCUSED:** **RAVEENDRAN.P AGED 47 YEARS, S/O. GOVINDANKUTTY NAIR, MULANTHALPATTU HOUSE, K.PURAM POST, TANALUR, MALAPPURAM DISTRICT, PIN - 676307 BY ADV K.MOHANAKANNAN** ## **RESPONDENT/STATE:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN - 682031** **T V NEEMA – SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 3167 of 2023 2 ## **ORDER** ## **Dated this the 22[nd] day of May, 2023** This is the 2[nd] application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the 9[th] accused in crime No.777/2022 of Kondotty Police Station, Malappuram. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor. 3. The earlier bail application was dismissed vide order in B.A.No.10345 of 2022 dated 15.02.2023 and the said order is as under: “This is an application for regular bail, filed by the 9th accused in Crime No.777/2022 of Kondotty Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the Case Diary materials placed by the learned Public Prosecutor. 4. The prosecution allegation is that, 92.30 grams of MDMA was found in possession of accused Nos.1 to 5, while they were transporting the same in a tourist car, driven by the 9th accused. B.A.No. 3167 of 2023 3 The further allegation of the prosecution is that, accused No.9, along with accused Nos.6 to 8 aided the other accused to transport the contraband against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). 5. The learned counsel for the petitioner would submit that the petitioner is innocent. According to him, the petitioner happened to be the driver of the tourist car, without knowledge regarding transport of MDMA at the instance of accused Nos.1 to 5. Therefore, he is absolutely innocent. Accordingly, the petitioner, who has been in custody from 9.10.2022, deserves regular bail. 6. Whereas, the learned Public Prosecutor submitted that the petitioner, who had driven the tourist car, collected MDMA from accused Nos.6 to 8 and transported the same in his car, joining hands with other accused. Therefore, his complicity is on par with other accused. It is submitted further that, since the quantity of contraband is commercial, the rigor under Section 37 of the NDPS Act would apply and without diluting the same, bail cannot be granted. 7. Here, the prosecution allegation is that, 92.30 grams of MDMA was transported in a car, admittedly driven by the petitioner/9th accused. The case diary would go to show that, B.A.No. 3167 of 2023 4 accused Nos.1 to 9 have contributed equally in the matter of transport. Therefore, there is no reason to read the complicity of the petitioner in segregation, particularly, when the prosecution has a specific case that, it was accused No.9, who collected the contraband from accused Nos.6 to 8 and transported the same, being the driver of the car. 8. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would 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, 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_ B.A.No. 3167 of 2023 5 _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._ 9. 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. 10. 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 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. 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 B.A.No. 3167 of 2023 6 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. 12. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the 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 B.A.No. 3167 of 2023 7 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is one reported in [2023 Crl.L.J.799], **Union of India v. Jitendra Giri** . 13. 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. 14. Thus, this Court while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 15. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner B.A.No. 3167 of 2023 8 ## is not liable to be released on bail. ## Accordingly, this bail application stands dismissed.” 4. In fact, nothing argued to revisit the order, since the the bail application was dismissed, holding that this is not a fit case to dilute the rigour under Section 37 of the Narcotic Drugs and Psychotropic Substances Act. Therefore, the petitioner cannot be released on bail. Accordingly, this bail application stands dismissed. SK **Sd/A. BADHARUDEEN JUDGE**