Sajil M v. State of Kerala & The Station House Officer, Kondotty Police Station, Malappuram District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 BAIL APPL. NO. 82 OF 2023** **CRIME NO.777/2022 OF KONDOTTY POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED A4:** **SAJIL M AGED 40 YEARS, S/O. SHOUKATHALI, MATTARA HOUSE, VANIYAMBALAM POST, KUTTIYIL, MALAPPURAM (DIST), PIN - 679339 BY ADVS. K.ANAND HUSSAIN KOYA VALIYAVEEDAKATH AMEER SALIM AJITH KUMAR M.V.** ## **RESPONDENTS/STATE & COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031**| |**2**|**THE STATION HOUSE OFFICER**| ||**KONDOTTY POLICE STATION,**| ||**MALAPPURAM DISTRICT, PIN - 673638**| ||**BY ADV PUBLIC PROSECUTOR**| ||**P G MANU(SR PP)**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 82 of 2023 2 ## **ORDER** ## **Dated this the 28[th] day of February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 4[th] accused in crime No.777/2022 of Kondotty Police Station, Malappuram, where the prosecution alleges commission of offences punishable under Sections 22(c) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act' for short). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials form part of the case diary and the report of the Investigating Officer, placed by the learned Public Prosecutor. 3. The prosecution case is that, at about 00.00 hours on 28.09.2022, accused Nos. 1 to 5 were nabbed by the Police, while they were transporting 92.3 gram of MDMA in a car bearing registration No.KL-71-H-7859. Accordingly, they were arrested and the contraband was seized. Further, accused Nos. 6 to 9 also got arrayed as accused on the allegation that, the transport of the contraband is the outcome of conspiracy hatched B.A.No. 82 of 2023 3 between accused Nos. 1 to 9. 4. While pressing for grant of regular bail to the petitioner, the learned counsel for the petitioner submitted that the petitioner is innocent and he is a young boy, who happened to be inside the car, without knowledge regarding transport of the contraband. He also would submit that, the contraband was seized from the possession of the 1[st] accused, for which the petitioner has no acquiescence or knowledge. Highlighting the custody of the petitioner from 28.09.2022 and the progress of investigation, the learned counsel for the petitioner, pressed for grant of regular bail to the petitioner. 5. Whereas the learned Public Prosecutor strongly opposed grant of bail to the petitioner on the submission that 92.3 gram of MDMA was seized by the Police, while the same was being transported by accused Nos. 1 to 5 jointly in a car bearing registration No.KL-71-H-7859 at odd hours on 28.09.2022 at Mongam Hill Top, Kondotty. Therefore, the complicity of the petitioner is on par with the other accused and his innocence as argued by the learned counsel for the petitioner cannot be appreciated at all. 6. It is also submitted that the rigour under Section 37 B.A.No. 82 of 2023 4 of the NDPS Act would squarely apply to the facts of the given case. Therefore, grant of bail shall be subject to the twin conditions provided therein. 7. On perusal of the case diary along with the report, _prima facie_ , it is emphatically made clear that, 92.3 gram of MDMA was seized while accused Nos. 1 to 5 were jointly transporting the same, that too at mid night on 28.09.2022. On this premise, the prosecution alleges commission of offences punishable under Sections 22(c) and 29(1) of the NDPS Act. Thus, _prima facie_ , the culpability of the petitioner and other accused are similar and the culpability of the petitioner cannot be read in isolation, as pointed out by the learned counsel for the petitioner. Since commercial quantity of contraband involved, this Court is bound to look into the interdiction of Section 37 of the NDPS Act, while granting bail to the accused, who alleged to have possessed commercial quantity of contraband. Here, possession and seizure of commercial quantity of contraband is fully established by the available materials, _prima facie_ . 8. 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 B.A.No. 82 of 2023 5 ## 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._ _(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._ 9. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a B.A.No. 82 of 2023 6 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. 10. 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. 11. 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 B.A.No. 82 of 2023 7 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. 12. 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) 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**_ B.A.No. 82 of 2023 8 _**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**_ . 13. 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. 14. Thus, this Court 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 grounds for believing that the accused is not guilty of B.A.No. 82 of 2023 9 the offence and he will not likely to commit any offence while on bail. 15. 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/-** SK **A. BADHARUDEEN JUDGE**