Richie Roy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 BAIL APPL. NO. 9280 OF 2023** **CRIME NO.677/2022 OF ELOOR POLICE STATION, ERNAKULAM** **PETITIONER/ACCUSED:** RICHIE ROY, AGED 22 YEARS, S/O. LATE ROY JOHN, KOTTARATHIL HOUSE, FORT VALLEY TOWNSHIP,KAKKANAD-682030. BY ADV SRUTHY N. BHAT ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031. SENIOR PUBLIC PROSECUTOR SRI K DENNY DEVASSY THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.11.2023, THE COURT ON 17.11.2023 DELIVERED THE FOLLOWING: B.A.No.9280/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.9280 of 2023_ _================================ Dated this the 17th day of November, 2023_ ## _**O R D E R**_ This is the second application for regular bail filed by the petitioner, who is the sole accused in Crime No.677 of 2022 of Eloor Police Station, Ernakulam, under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents placed by the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. 3. The prosecution case is that at about 21.15 hours on 14.10.2022, the accused was found in possession of 12 LSD stamps B.A.No.9280/2023 3 having weight of 0.140 grams at the ground of FACT, . Udyogamandal in Eloor village, without any lawful authority Accordingly, he was nabbed and the contraband was taken into custody on the allegation that he has committed offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act’ for short). 4. The learned counsel for the petitioner would submit that the petitioner is innocent and the allegations are false. According to him, the right of the petitioner to get his body search done in the presence of a gazetted officer was not complied. It is also submitted that there is non compliance of Sections 41 and 42 of the NDPS Act, which is a serious matter to be adjudged in favour of the petitioner, for granting regular bail. The learned counsel for the petitioner submitted that the accused has been in custody from 14.10.2022 and he is a first time offender. Since the trial could not B.A.No.9280/2023 4 be completed within a period of 6 months, following the ratio in [2023 (3) KHC 212], _**Fasil v. State of Kerala**_ , the accused deserves bail and the same may be allowed. 5. The learned Public Prosecutor would submit that in this was matter body search was not done or nothing recovered on body search. The contraband was seized as a chance recovery when the Sub Inspector of Police, Eloor was on law and order duty. The petitioner was questioned and contraband seized since he was found in a frightened mood creating doubt and therefore, in the case at hand, compliance of Sections 41, 42 and 50 is not at all mandatory. Since the contraband was red-handedly seized from the petitioner while the petitioner was possessing the same, the prosecution case is very well made out and in such a case involving commercial quantity of contraband, this Court cannot grant regular bail without satisfying the conditions embodied under Section 37 of the NDPS Act. B.A.No.9280/2023 5 6. It is also submitted by the learned Public Prosecutor that as there is a report from the learned Additional Special Judge, North Paravur to the effect that the trial of the case would be completed within a period of six months from 04.11.2023, the ratio of the decision in _**Fasil v. State of Kerala**_ 's case ( _supra_ ) has no application in this case. Accordingly, the petitioner did not deserve bail in this case. 7. In this matter, the earlier bail application filed by the petitioner, B.A.No.68 of 2023, was dismissed holding that the rider under Section 37 of the NDPS Act could not be diluted in the facts of the given case, involving commercial quantity of the contraband and the relevant paragraphs 6 to 16 are extracted hereunder: _“6. While appreciating the innocence of the petitioner, as canvassed by the learned counsel for the petitioner along with the allegation as to non-compliance of Sections 41, 42 and 50 of the NDPS Act, a mere perusal of recovery mahazar would go to show that the contraband was seized from the accused when search was conducted as a routine manner, doubting the conduct of the accused, which is relevant under Section 8 of the Evidence_ B.A.No.9280/2023 6 _Act. Therefore, no doubt, the recovery is nothing but a chance recovery when he was found afraid on seeing the police party while they were on duty. It is relevant to note further that the contraband was not seized from his body, but from a plastic cover possessed by the accused. Therefore, compliance of Sections 41, 42 or 50 of the NDPS Act is not at all mandatory in the facts of the given case. Thus the recovery effected is legal, prima facie. Thus the prosecution allegations are well made out, prima facie and in such a case, this Court cannot grant bail to the accused without satisfying the rigour under Section 37 of the NDPS Act._ _7. In this matter, this regular bail application has been filed as early as on 03.01.2023 and the same got adjourned periodically, at the request of the petitioner since commercial quantity of contraband is involved. Thereafter, as on 16.05.2023, during summer vacation, the accused pressed for interim bail before the learned Vacation Judge and the learned Vacation Judge granted interim bail for a period of two weeks. It is submitted by the learned counsel for the petitioner that the interim bail period would expire by 02.06.2023. The learned counsel for the petitioner submitted further that the interim bail was granted considering the illness of the mother of the petitioner and her condition is still continuing as such. Therefore, the interim bail may be extended._ _8. Extension of the interim bail is zealously opposed by the learned Public Prosecutor on the submission that a certificate issued from a private hospital stating that the petitioner’s mother_ ## B.A.No.9280/2023 7 _is suffering from `stress related depression’ is the reason for grant of interim bail for a period of two weeks. Since the petitioner got an opportunity to meet his mother and to do the needful, the prayer for further extension of interim bail in a case involving serious offence cannot be considered._ _9. On perusal of the medical certificate, it could be gathered that the petitioner’s mother has `stress related depression’. But the same is not a reason to grant interim bail for a pretty long time. Since the petitioner already enjoyed the benefit of interim bail for a period of two weeks, I am not inclined to extend the same further for any reason in a case involving very serious offence._ _10. Coming to grant of bail in a case involving 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_ B.A.No.9280/2023 8 _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 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 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_ ## B.A.No.9280/2023 9 _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 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 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799],_ _**Union of India v. Jitentra Giri** ._ _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_ B.A.No.9280/2023 10 _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 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, this application for regular bail at the instance of the petitioner must fail.”_ 8. In _**Fasil v. State of Kerala**_ 's case ( _supra_ ) this Court laid down certain parameters to dilute the rigour the under Section 37 ## of the NDPS Act and the same as under:- _“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months_ ## B.A.No.9280/2023 11 _in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”_ 9. Thus it appears that the ratio of _**Fasil v. State of Kerala**_ 's case ( _supra_ ) would apply only when the accused has been in custody for more than one year, who has no criminal antecedents, where trial of the case could not be completed within six months. In this matter, when a report from the learned Special Judge, North Paravur was called for to ascertain the possibility of trial and disposal of the S.C.No.202/2023 within six months, the learned Special Judge reported, as per letter dated 04.11.2023 that the case would be disposed of within a period of six months from 04.11.2023. 10. Since it is reported by the learned Special Judge, North B.A.No.9280/2023 12 Paravur, that the trial in this case would be started immediately and the case would be disposed of within six months, there is no reason to apply the ratio in _**Fasil v. State of Kerala**_ 's case ( _supra_ ) in the present case. 11. In view of the above discussion, the bail application deserves to be dismissed directing the Special Judge, North Paravur, to expedite the trial and dispose of the case within a period of six months from 04.11.2023. Accordingly, this Bail Application stands dismissed with direction to the learned Special Judge, North Paravur, to dispose of S.C.No.202/2023 within six months, as reported. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.9280/2023 13 ## _**APPENDIX OF BAIL APPL. 68/2023**_ PETITIONER'S ANNEXURES Annexure 1 COPY OF THE ORDER DATED 03.11.2022 IN CRL.M.C NO. 2437/2022 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II, ERNAKULAM. Annexure2 COPY OF THE ORDER DATED 24.12.2022 IN CRL.M.C NO. 2873/2022 OF THE COURT OF THE ADDITIONAL SESSIONS(VACATION COURT), ERNAKULAM. Annexure 3 TRUE COPY OF THE ORDER DATED 02.06.2023 IN B.A.NO.68/2023 OF THIS HON'BLE COURT. Annexure2 COPY OF THE ORDER DATED 24.12.2022 IN CRL.M.C NO. 2873/2022 OF THE COURT OF THE ADDITIONAL SESSIONS(VACATION COURT), ERNAKULAM.