Sakeer K.A. alias Jinnu Sakeer v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 1820 OF 2024 ``` ``` CRIME NO.324/2023 OF AMBALATHARA POLICE STATION, KASARGOD AGAINST THE ORDER DATED IN SC NO.50 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD / I ADDITIONAL MACT, KASARAGODE ``` ## **`PETITIONER/ACCUSED:`** ``` SAKEER.K.A @ JINNU SAKEER, AGED 34 YEARS ``` ``` S/O ABDULLA KUNJI, EROLE HOUSE, CHATTAMCHAL, THEKKIL, KASARGODE DISTRICT, PIN - 671541 ``` ``` BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI RAYEES P. M.MAHIN HAMZA ALWIN JOSEPH ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE STATION HOUSE OFFICER, AMBALATHARA POLICE STATION, AMBALATHARA, KASARGOD DISTRICT, PIN - 671316 BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No. 1820 of 2024 ## -:2:- Dated this the 7[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 sole accused in Crime No.324/2023 of the Ambalathara Police Station, Kasaragod, registered against him for allegedly committing the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 26.07.2023. 2. The essence of the prosecution case is that: on 26.07.2023, at around 13.10 hours, when the second respondent and party were conducting night patrol duty, they intercepted a car bearing No. KL-14-T-9294 driven by the accused. On conducting a search of the car, they seized 0.1 grams of LSD stamps from a purse ## B.A.No. 1820 of 2024 ## -:3:- that was kept on the dash board of the car. The accused was arrested on the spot with the contraband. Thus, the accused has committed the above offences. 3. Heard; Sri. P. Mohamed Sabah., the learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The second respondent has flagrantly violated the provisions of Section 51 of the Act while conducting the search and seizure of the contraband article. Moreover, the contraband article was weighed with the cover. It is in circumstances, the contraband is treated as of a commercial quantity. If the contraband was weighed without the cover, it would have been of an intermediate quantity, and rigour under Section 37 of ## B.A.No. 1820 of 2024 ## -:4:- the Act will not apply. Therefore, the ratio laid down in **Hira Singh & Anr. v. Union of India & Anr** (2020 (2) KHC 551) does not apply to the facts of the case. In any given case, the petitioner has been in judicial custody since 26.07.2023, the investigation in the case is complete, and the final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the petitioner is a person with criminal antecedents since he is involved in five other crimes, of which Crime No.470/2022 registered by the Melparamba Police Station against the petitioner is for committing an offence under the Act. Hence, the petitioner has failed ## B.A.No. 1820 of 2024 ## -:5:- to qualify the second limb of Section 37 of the Act. Moreover, as per the chemical analysis report submitted by the Regional Forensic Science Laboratory, Kannur, dated 04.01.2024, it is confirmed that the contraband is LSD. The seizure mahazar also shows that the contraband is of 0.1 grams of LSD. The contentions raised in the application with regard to the violation of Section 51 of the Act are matters to be decided after trial. The petitioner has not made out reasonable grounds to dilute the rigour under Section 37 of the Act. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he was found in conscious possession of 0.1 grams of LSD stamp, which was kept in a purse on the dash board of the car that was driven by the petitioner. The petitioner was arrested on the spot with the contraband article. The two fold argument of the ## B.A.No. 1820 of 2024 ## -:6:- learned counsel for the petitioner is that (i) the Detecting Officer has failed to follow the procedure laid down under the Cr.P.C, which is the mandate under Section 51 of the Act, and (ii) a reading of Annexure A2 seizure mahazar shows that the contraband was weighed without excluding the cover. Therefore, the contraband is less than 0.1 gram of LSD. If the cover is excluded, the contraband would of an intermediate quantity, and the rigour under Section 37 of the Act will not apply. 7. Indisputably, the petitioner is an accused in Crime Nos. 164/2015, 492/2016, 305/2015, 321/2015, and 470/2022 of various police stations, of which Crime No. 470/2022 is registered against him for allegedly committing an offence under Section 27 (b) of the Act. 8. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant ## B.A.No. 1820 of 2024 ## -:7:- of bail in cases involving offences under the 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 satisfed that there are reasonable grounds for believing that he is not guilty of such ofence and that he is not likely to commit any ofence while on bail. (2) The limitations on granting of bail specified in clause (b) of subsection (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. (emphasis given) 9. 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 ## B.A.No. 1820 of 2024 -:8:- involving commercial quantity shall not be released on bail unless the court is there are satisfied that reasonable grounds to believe that the accused is not guilty of the offence 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 the accused satisfying the twin conditions under Sec.37 of the Act. 10. 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 B.A.No. 1820 of 2024 -:9:- guilty of the offence charged”. 11. In **Union of India v. Mohd. Nawaz Khan** [(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 drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. ## 12. Like wise, in **Dheeraj Kumar Shukla v. The** **State of Uttar Pradesh** [2023 KHC 6545], the Hon’ble Supreme Court has categorically held that for a person to qualify the second limb under Section 37 of the Act, he should not have criminal antecedents. ## B.A.No. 1820 of 2024 ## -:10:- 13. In the case on hand, admittedly, the petitioner is an accused in five other cases as referred to above. Therefore, this Court cannot hold that the petitioner is not likely to commit an offence if he is released on bail. 14. Similarly, in **Union of India v. MD Nawaz Khan** [2021KHC 6503] the Hon'ble Supreme Court, after considering the earlier precedents on the point, has held thus: “28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana.” ## 15. The above view has been followed by this Court in **Abeesh v. State of Kerala** [2022:KER:50902] in the following lines: “8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution case. Here is a case ## B.A.No. 1820 of 2024 ## -:11:- where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham’s case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan’s case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act.” ## B.A.No. 1820 of 2024 -:12:- 16. In the light of exposition of law in **Md Nawaz Khan's** case and in **Abeesh'** s case, which I fully concur, I am of the firm view that the question raised by the counsel for the petitioner, that there is a violation of Section 51 of the Act is also a matter that can be decided only after the trial and not at the nascent stage of considering an application for bail. 17. 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. 18. 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: ## B.A.No. 1820 of 2024 ## -:13:- “9.xxx xxx xxx However, it is equally incumbent upon the High 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”. 19. On an anxious consideration of the facts of the case, the law involved referred to above, the materials placed on record, and the rival submissions made across the Bar, I am of the definite view that, the question whether the search and seizure were conducted in accordance with provisions of the Act is a matter of evidence and not a matter to be determined in the bail application. Furthermore, considering the ## B.A.No. 1820 of 2024 ## -:14:- nature, seriousness and gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, that the petitioner is a person with criminal antecedents, the potential severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction, I do not find any reasonable ground to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit an offence. The petitioner has failed to dilute the rigour under Section 37 of the Act. Therefore, I am not inclined to enlarge the petitioner on bail. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** mtk/07.06.24