Roy E v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 BAIL APPL. NO. 9646 OF 2022** **CRIME NO.1108/2022 OF KANNUR TOWN POLICE STATION** ## **PETITIONER/2ND ACCUSED:** **ROY E AGED 34 YEARS, S/O JOHN ILLIKKAL HOUSE, KEYAPARAMBU, ULLIKKAL, KANNUR RURAL, KERALA, INDIA, PIN - 670705 BY ADVS. P.K.SUBHASH SREELAKSHMI SABU RAVEENA K.R.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR P G MANU – SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 9646 of 2022 2 ## **ORDER** ## **Dated this the 29[th] day of March, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 2[nd] accused in crime No.1108/2022 of Kannur Town Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor. 3. The prosecution case is that, at about 16.55 hours on 31.08.2022, accused Nos. 1 and 2 herein were found in possession of 60 kilogram of Ganja from the house of the 1[st] accused by name, Shakhil Nivas in Kannur Corporation, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘NDPS Act’). Accordingly, the accused were arrested along with 60 kilogram of Ganja and Rs.51,000/- towards sale price. Pursuant to arrest and recovery crime alleging commission of offences punishable under Sections 20(b)(ii)(c) and 29 of the NDPS Act was registered and is on investigation. B.A.No. 9646 of 2022 3 4. Last time, the learned counsel for the petitioner submitted that, the petitioner is entitled to get default bail since the petitioner has been in custody beyond 180 days and his further detention is without any order of extension. 5. Today, it is submitted by the learned Public Prosecutor that period of detention was extended upto 25.04.2023 by order of Special Court, Vatakara as per Crl.M.P.No.156/2023 dated 09.03.2023. 6. At this juncture, the learned counsel for the petitioner canvased regular bail to the petitioner on the submission that, the petitioner has been in custody from 31.08.2022 onwards and the investigation has achieved much progress. 7. Whereas the learned Public Prosecutor strongly opposed grant of bail to the petitioner, on the submission that 60 kilogram of Ganja (commercial quantity) was recovered from the joint possession of accused Nos. 1 and 2. In such a case, this Court cannot grant regular bail without satisfying the conditions provided under Section 37 of the NDPS Act. 8. On perusal of the available materials red handed recovery of 60 kilogram of Ganja from the house of 1[st] accused, when accused Nos. 1 and 2 jointly possessed the same is well established, _prima facie_ . Therefore, this Court must satisfy the B.A.No. 9646 of 2022 4 twin conditions stipulated under Section 37 of the NDPS Act, while granting bail to an accused, who alleged to have possessed commercial quantity of contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in this case. 9. 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._ B.A.No. 9646 of 2022 5 _(2) The limitations on granting of bail specified in clause (b) of 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._ 10. 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. 11. 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. 12. It was further held that the Court while considering the B.A.No. 9646 of 2022 6 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 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. 13. 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) B.A.No. 9646 of 2022 7 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 one reported in [2023 Crl.L J 799], _**Union of India v. Jitendra Giri**_ . 14. 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. 15. Thus, 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 B.A.No. 9646 of 2022 8 grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 16. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK