Sahul U v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 BAIL APPL. NO. 1323 OF 2023 ``` ``` CRIME NO.763/2022 OF KOZHIKODE TOWN POLICE STATION, ``` ## **`KOZHIKODE`** ## **`PETITIONER/2ND ACCUSED:`** ``` SAHUL U AGED 22 YEARS ``` ``` S/O SADAT, SAMJAAD MANZIL, MAATHOTTAM, ARAKINNAR P.O, KOZHIKODE,, PIN - 673028 ``` ``` BY ADV BONNY BENNY ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 ``` ``` BY ADV T V NEEMA SR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No. 1323 of 2023 2 ## **A.BADHARUDEEN, J.** ## **-----------------------------------------------** **BAIL APPL. No.1323 of 2023 ----------------------------------------------Dated this the 9[th] day of March, 2023.** ## **O R D E R** This is an application for regular bail moved by the second accused in Crime No.763/2022 of Town Police Station, Kozhikode. 2. Heard. Perused the case diary along with detailed report of the Investigating Officer. 3. Prosecution case is that at 16.30hrs on 20.11.2022, the accused persons possessed 34.79gms of MDMA, 1.105 Kgs Ganja and 21gms Hashish in a car bearing registration No.KA49-M-4546. The specific case of the prosecution is that when the Sub Inspector of Police and party while on patrolling, reached near a shop by name ‘The Hemp Station’, eastern side of south beach, it was noticed that a person ran away from BA No. 1323 of 2023 3 Mahindra SUV car bearing Reg. No.KA-49-M-4546. Thereafter the passengers of the car were questioned and searched. Accordingly, 19.050gms of MDMA was seized from the second accused and 15.740 gms of MDMA was seized from the first accused. Apart from that, 21 gms of Hashish and other items herein above referred were also seized. Pursuant to recovery and arrest of the accused, crime alleging commission of offences under Section 22(c), 20(b)(ii)(B), 20(b)(ii)(A), 21(b) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience) was registered. 4. The learned counsel for the petitioner would submit that the petitioner is innocent and on seeing the police party, the person who actually carried the contraband ran away and the persons who were inside the car who were absolutely innocent were nabbed by the police. Since the petitioner who is the 2[nd] accused in the above crime did not consciously possess any contraband as alleged by the prosecution, commission of offences herein above referred as against the petitioner could BA No. 1323 of 2023 4 not be found prima facie. Therefore, taking note of the custody of the petitioner from 20.11.2022 and the progress of the investigation, petitioner is liable to be released on bail. 5. While opposing the plea for bail, the learned Public Prosecutor would submit that the submission made by the learned counsel for the petitioner pointing out absolute innocence of the petitioner/2nd accused cannot be digested at all. It is pointed out that 19.050gms of MDMA was seized from the possession of the 2[nd] accused on body search, apart from recovery of other items of contraband. Therefore, the complicity of the petitioner is well established prima facie and in such a case, he cannot be released on bail as grant of bail involving commercial quantity of contraband is subject to satisfaction of the conditions provided under Section 37 of the NDPS Act. 6. On perusal of the case diary with reference to the recovery mahazer, it could be gathered that the detecting team seized 34.79gms of MDMA, 1.105 Kgs of Ganja and 21gms of Hashish. It is relevant to note that 19.050 gms of MDMA was seized from the conscious possession of the 2[nd] BA No. 1323 of 2023 5 accused/petitioner herein as the outcome of his body search. Therefore, the complicity of the petitioner in the matter of transport of contraband as alleged in the prosecution is well made out prima facie and in such a case, grant of regular bail shall be subject to the rigor under Section 37 of the NDPS Act. Section 37 of the NDPS Act provides as under: “37. Offences to be cognizable and nonbailable.-- (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. BA No. 1323 of 2023 6 (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. 7. 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. 8. 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 BA No. 1323 of 2023 7 themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 9. 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 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. 10. 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: BA No. 1323 of 2023 8 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** . 11. 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 BA No. 1323 of 2023 9 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. 12. 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. Hence the petition stands dismissed. **Sd/-** ## **A.BADHARUDEEN, JUDGE.** Mn BA No. 1323 of 2023 10 ## **`APPENDIX OF BAIL APPL. 1323/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1 ``` ``` THE CERTIFIED COPY OF THE F.I.R NO.763/2022 OF TOWN POLICE STATION, KOZHIKODE IS PRODUCED ``` ``` Annexure A2THE CERTIFIED COPY OF THE REMAND REPORT BEFORE THE HONORABLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE Annexure A3THE CERTIFIED COPY OF THE ORDER IN CRL MC NO.1004/2022 BEFORE THE COURT OF THE SPECIAL JUDGE(NDPS ACT CASES), VADAKARA ```