SAHAL v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 2575 OF 2024 ``` ``` CRIME NO.1959/2023 OF ALUVA EAST POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED 05.01.2024 IN CRMC NO.3770 OF 2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM PETITIONER/2ND ACCUSED: ``` ``` SAHAL, AGED 24 YEARS S/O NOUSHAD, KARIPPAYI HOUSE, MANTHRAKKAL ROAD,THAIKKATTUKARA P.O, ALUVA., PIN - 683106 ``` ## **`BY ADV SHIRAS ALIYAR`** ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A No.2575 of 2024 ``` 2 Dated this the 4[th] day of June,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.1959/2023 of the Aluva East Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 8A(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 3.12.2023. 2. The gist of the prosecution case is that: on 3.12.2023, at 8.40 hours, the Detecting Officer received an information that the accused were selling MDMA on the Aluva Bye Pass road. Accordingly, the Detecting Officer conducted a search and arrested the second accused with 23.500 grams of MDMA. ``` B.A No.2575 of 2024 ``` 3 Subsequently, the other accused were also arrested with the remaining contraband of 36.21 grams of MDMA. Thus, the accused have committed the above offences. 3. Heard; Sri.Shiras Aliyar., the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Special Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There are no material to substantiate the complicity of the petitioner in the crime. The petitioner has been in judicial custody for the last more than 180 days, the investigation in the case is complete and the final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the ``` B.A No.2575 of 2024 ``` 4 application. She submitted that commercial quantity of contraband was seized from the accused. The petitioner is a person with criminal antecedents, as he is involved in 7 other cases, of which one case is for committing an offence under the NDPS Act. If the petitioner is enlarged on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that, they were found in possession of 59.710 grams of MDMA, which was for the purpose of sale. Indisputably, Section 29 of the Act has been incorporated. Furthermore, the contraband involved in the case is of a commercial quantity and the petitioner is a person with criminal antecedents. 7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the ``` B.A No.2575 of 2024 ``` 5 ## 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 sub-section (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. 8. 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 ``` B.A No.2575 of 2024 ``` 6 reasonable grounds to 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. 9. 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 circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged”. ## 10. In **Union of India v. Mohd. Nawaz Khan** ``` B.A No.2575 of 2024 ``` 7 [(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 drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 11. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 12. 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 ``` B.A No.2575 of 2024 ``` 8 Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of 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”. 13. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, and the materials placed on record, especially on considering the seriousness, gravity, and nature of the accusations alleged against the petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband involved in the case and further that the petitioner is a person with criminal antecedents, I am satisfied that there are no reasonable grounds to ``` B.A No.2575 of 2024 ``` 9 hold that the petitioner is not guilty of the offences alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out any reasonable ground to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be rejected. Resultantly, the application is dismissed. SD/- ## **C.S.DIAS,JUDGE** rmm/4/62024