RINSHAD K J v. STATE OF KERALA

1 Bail Application No. 10949 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 ``` ``` BAIL APPL. NO. 10949 OF 2023 ``` ``` CRIME NO.2303/2023 OF Mattancherry Police Station, Ernakulam PETITIONER/S: ``` ``` RINSHAD K J AGED 31 YEARS 5/368 B, BANGLAVU PARAMBU, PUTHIYA ROAD, MATTANCHERRY, ERNAKULAM, KERALA, PIN - 682002 BY ADV SAQIB RIZWAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 10949 of 2023 ## **C.S.DIAS,J** **====================== Bail Application No. 10949 of 2023** **----------------------------------Dated this the 8[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in crime No.2303/2023 of the Mattanchery Police Station, registered against him, alleging to have committed the offence punishable under Sec.22(b) of the NDPS Act (in short, ‘Act’). The petitioner was arrested on 29.10.2023. 2. The prosecution case, in brief, is that: On 29.10.2023 at around 3.55 a.m, the petitioner was found 3 Bail Application No. 10949 of 2023 in possession of 2.27 grams of MDMA on the public road. He was arrested with the contraband article. Thus, the accused has committed the above offence. 3. Heard; Sri.Saqib Rizwan, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner strenuously argued that the petitioner is falsely implicated in the crime. The petitioner has been in judicial custody since 29.10.2023. The petitioner is entitled for statutory bail after a period of 60 days since only an intermediate quantity is involved. The petitioner is prepared to abide by any stringent 4 Bail Application No. 10949 of 2023 conditions imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor strenuously opposed the application. He contended that the petitioner is involved in two other NDPS cases and four other crimes involving Indian Penal Code offences. The petitioner is a habitual offender. If the petitioner is let off on bail, there is every likelihood of committing a similar offence. Moreover, the Investigating Officer has filed the final report on 27.11.2023. Thus, the petitioner is not entitled to default bail under Sec.167(2) of the Code of Criminal Procedure. Hence, the application may be dismissed. 5 Bail Application No. 10949 of 2023 6. The prosecution allegation is that the petitioner was found in possession of 2.27 grams of MDMA on 29.10.2023 and he was arrested then and there. It is undisputed that the petitioner is involved in two other cases under the NDPS Act in the year 2020 and 2022. He is also an accused in four other crimes for having committed offences under the Indian Penal Code. 7. 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 6 Bail Application No. 10949 of 2023 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”. ## 8. Similarly, in **Kalyan Chandra Sarkar v. Rajesh** ## **Ranjan,** [(2004) 7 SCC 528], the Honourable Supreme ## Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338.) 7 Bail Application No. 10949 of 2023 ## 9. 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 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.” ## 10. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to 8 Bail Application No. 10949 of 2023 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 Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. ## 11. 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 9 Bail Application No. 10949 of 2023 circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged”. 12. 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 Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to 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 drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 13. On a meticulous scrutiny of the factual matrix, for the purpose of bail and the law referred to above and taking into account the criminal antecedents of the petitioner and the fact that there is an apprehension 10 Bail Application No. 10949 of 2023 projected by the prosecution that the petitioner is likely to commit similar offences if he is let off on bail, I am not at this stage convinced that the petitioner is not guilty for the offence alleged against him and there is no likelihood of him committing a similar offence if he is released on bail. Thus, I do not find any cogent reason or valid ground to dilute the rigour under Sec.37 of the Act. The application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. sks/8.1.2024 sd/- **C.S.DIAS, JUDGE** 11 Bail Application No. 10949 of 2023 ## **`APPENDIX OF BAIL APPL. 10949/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure-I ``` ``` A CERTIFIED COPY OF THE ORDER DATED 24.11.2023 OF THE HON'BLE VIII ADDL. SESSIONS COURT I/C OF I ADDL. SESSIONS JUDGE, ERNAKULAM ```