SABARINATH T.A. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** **BAIL APPL. NO. 799 OF 2023** **CRIME NO.625 OF 2022 OF KADAKKAVOOR POLICE STATION,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED NO.1 :** **SABARINATH T.A., AGED 42 YEARS, S/O.THULASEEDHARAN VISAKH, PERUMKUZHI, NALUMUKKU, CHIRAYANKEEZHU, THIRUVANANTHAPURAM, PIN - 695305** **BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU SHIFNA MUHAMMED SHUKKUR GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **BY SMT.NEEMA T.V., SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.799 of 2023 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------B.A.No.799 of 2023 -------------------------------------------------------Dated this the 7[th] day of February, 2023** ## **O R D E R** This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the first accused in Crime No.625 of 2022 of Kadakkavoor Police Station, Thiruvananthapuram, where accused Nos.1 to 4 alleged to have committed offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. 3. I have perused the Case Diary materials B.A.No.799 of 2023 ..3.. ## produced by the learned Public Prosecutor. 4. The prosecution allegation is that, at about 11.45 hours on 28.09.2022, the accused persons herein possessed 320 grams of MDMA for the purpose of sale and the said contraband was seized from the two wheeler they travelled and also from their body. Accordingly, crime registered alleging commission of offence punishable under Section 22(c) of the NDPS Act. 5. While pressing for grant of regular bail to the petitioner who alleged to have committed offence punishable under Section 22(c) of the NDPS Act involving commercial quantity, the learned counsel for the petitioner pointed out two anomalies in the recovery. First point argued is that body search was conducted in the absence of Gazetted Officer in gross violation of the mandate of Section 50 of the NDPS Act, B.A.No.799 of 2023 ..4.. though contraband was seized from the pocket of the petitioner, who is the first accused in the above case. Second point is that samples were not collected in accordance with law and therefore, the recovery of contraband itself is in doubt. 6. Whereas, the learned Public Prosecutor placed the case diary containing the report as well as the recovery mahazar. He also opposed the contentions raised by the learned counsel for the petitioner. 7. On perusal of the case diary, it is discernible that search was conducted on the body of the accused in the presence of the Tahasildar, Varkala and accordingly, prima facie, compliance of Section 50 of the NDPS Act could be seen from the prosecution records. As far as collection of samples also, prosecution records would suggest that samples were collected in B.A.No.799 of 2023 ..5.. accordance with law, prima facie. Thus, the two points argued by the learned counsel for the petitioner to grant bail to the petitioner found to be not convincing, on perusal of the prosecution records. 8. In this matter, it is reported by the Investigating Officer that the petitioner is a person having criminal antecedents and he has involvement in 14 crimes as listed hereunder: 1. Chirayinkeezhu Police Station Crime.39/1997 u/s.143, 147, 148, 149, 506 IPC & 27 of Arms Act & Sec 3 of Explosive Act. 2. Crime.84/1997 U/S.143, 147, 148, 149, 302 IPC and 27 of Arms Act 3. Crime.38/2000 U/S.143, 147, 148, 149, 323, 324 and 294(b) IPC 4. Crime.331/2005 U/S.294(b) and 353 IPC B.A.No.799 of 2023 ..6.. 5. Crime.661/2016 U/S.354, 341, 323, 294(b), 507, 509, 354D IPC 6. Crime.688/2016 U/S.354 A, 452, 506 IPC 7. Crime.773/2016 U/S.43a, b, i and 63E of IT Act. 8. Crime.971/2016 U/S.354D, 507 IPC and 120(O) KP Act. 9. Crime.1656/2016 U/S.354D, 507 IPC and 120(O) KP Act. 10. Crime.1656/2020 U/S.188, 447, 427, 34 IPC 11. Crime.1593/2016 U/S 294(b), 506(ii) IPC and 120(O) of KP Act. 12. Crime.1782/2021 U/S 20(b) 2(B) NDPS Act 13. Crime.1863/2021 U/S 20(b) 2(B) and 29 of NDPS Act B.A.No.799 of 2023 ..7.. 14. Mangalapuram Police Station Crime. 985/2005 U/S 143, 147, 148, 149, 109, 114 and 307 IPC. 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_ B.A.No.799 of 2023 ..8.. _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 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 B.A.No.799 of 2023 ..9.. 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 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 B.A.No.799 of 2023 **==> picture [26 x 9] intentionally omitted <==** 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: B.A.No.799 of 2023 ..11.. 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] B.A.No.799 of 2023 ..12.. 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, this Court while granting bail to an accused, who alleged to have committed offences under B.A.No.799 of 2023 ..13.. 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. 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** rkj B.A.No.799 of 2023 ..14.. ## **APPENDIX OF BAIL APPL. 799/2023** **PETITIONER ANNEXURES** **ANNEXURE1 CERTIFIED COPY OF THE ORDER OF THE HON'BLE ADDL. SESSIONS COURT, THIRUVANATHAPURAM IN CRL.M.P. NO. 3153 OF 2022 DATED 09.12.2022**