Salil Kumar.K.P v. State of Kerala and Excise Range Office, Iritty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** **BAIL APPL. NO. 1292 OF 2024** **CRIME NO.22/2023 OF IRITTY EXCISE RANGE OFFICE, KANNUR** ## **PETITIONER/S:** **SALIL KUMAR.K.P, AGED 30 YEARS S/O SAJEEV KUMAR, K.P. HOUSE,NEAR AKG VAYANASALA MADAKKARA, IRINAVU, KANNUR, PIN - 670301 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA MUHAMMED SUHAIR C.A KARAN MATHEW RAMU SUBHASH ANANTHAKRISHNAN R.** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 EXCISE RANGE OFFICE, IRITTY, KANNUR DISTRICT, PIN - 670703** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.1292 of 2024 2 ## **O R D E R** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, the Code), by the sole accused in Crime No.22/2023 of the Iritty Excise Range Office, Kannur, registered against him for allegedly committing the offence punishable under Sec.22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short, ‘Act’). The petitioner was arrested on 21.3.2023. 2. The essence of the prosecution case is that: on 21.03.2023 at around 23.30 hours, the accused was found in possession of 100 grams of MDMA near the Excise Check Post at Iritty-Koottupuzha road. The accused was arrested then and there at the spot. Thus, the accused has committed the above offence. 3. Heard; Sri.Sam Issac Pothiyil, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the B.A.No.1292 of 2024 3 respondents. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 21.03.2023, which is nearly a year. The investigation in the case is complete, recovery has been effected and final report has been laid. Therefore, the petitioner's further detention unnecessary. Hence, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner was found in conscious possession of a commercial quantity of MDMA. Therefore, the rigour under Section 37 of the Act applies to the facts and case. Taking into all those aspects, this Court dismissed the earlier application by Annexure A1 order. There has been no change of circumstances since the passing of Annexure A1 order. Therefore, this application is only to B.A.No.1292 of 2024 4 ## be dismissed. 6. The prosecution allegation is that the petitioner was found in conscious possession of 100 gms of MDMA and he was arrested with the contraband from the spot. 7. Indisputably, the contraband is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 8. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant 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 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 B.A.No.1292 of 2024 5 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. 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 involving commercial quantity shall not be released on bail unless the court is satisfied that there are 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. 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: B.A.No.1292 of 2024 6 “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”. ## 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. 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 B.A.No.1292 of 2024 7 Section 439 of the Code, while considering a bail application. 13. 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 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”. 14. When the bail application came up for consideration on 04.03.2024, taking into account the B.A.No.1292 of 2024 8 gravity and seriousness of the accusations leveled against the petitioner, but also the fact that the petitioner's wife is allegedly suffering from psychiatric problems, this Court called for a report from the Special Court (NDPS Act Cases, Vatakara to ascertain the position and reasonable time period required to dispose of S.C.No.106/2023. 15. The learned Special Judge, by communication dated 05.03.2024, has informed this Court that the final report/complaint was laid on 07.09.2023 and the court charge has been framed against the petitioner. The case has been numbered as S.C.106/2023 and stands posted to 14.03.2024 for scheduling the trial. There are nineteen witnesses in the case. Since the petitioner has been treated as an under trial prisoner as per the official memorandum dated 01.11.2022 of this Court, the learned Sessions Judge is read to give priority to the petitioner's case. However, as cases of similar nature have already been scheduled till 3[rd] week of May, the learned Sessions B.A.No.1292 of 2024 9 Judge would make an attempt to schedule the instant case in the first and second week of June, 2024 and dispose it of in the same month. Nevertheless, if this Court directs, some of the scheduled cases can be removed from the schedule in the month April and the present case can be included and the case can be disposed of in the month of April itself. 16. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially the findings already rendered by me in Annexure A1 order and on comprehending the nature, seriousness and nature of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the huge commercial quantity of contraband that is involved in the case, I do not find any reasonable ground to hold that the petitioner is not guilty of the offence against him and he is not likely to commit an offence, if he is on bail, so as to dilute the rigour under Sec.37 of B.A.No.1292 of 2024 10 the Act. Nonetheless, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I direct the Special Court (NDPS Act Cases), Vatakara to consider and dispose of S.C.No.106/2023, in accordance with law and as expeditiously as possible, at any rate, on or before 30.06.2024. With the above observations, the application is dismissed. ``` Sd/- ``` ``` C.S.DIAS ``` ``` JUDGE ``` ``` shg ```