Sameer v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 4175 OF 2024 ``` ``` CRIME NO.55/2024 OF RAJAPURAM POLICE STATION, KASARGOD ``` ``` AGAINST THE ORDER DATED IN BAIL APPL. NO.1490 OF 2024 OF HIGH COURT OF KERALA ``` ## `PETITIONER:` ``` SAMEER, AGED 38 YEARS S/O KUNHAMMED, R/AT ATHINHAL, CHITHARI.P.O, AJANUR VILLAGE, KASARAGOD DISTRICT., PIN – 671531 ``` ``` BY ADVS.A.ARUNKUMAR S.SHYAM KUMAR SACHIN GEORGE ARAMBAN ``` ## `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 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4175/2024_ _-:2:-_ _Dated this the 12[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.55/2024 of the Rajapuram Police Station, Kasaragod, which is registered against the accused for allegedly committing the offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short, ‘NDPS Act’). The petitioner was arrested on 25.04.2024. 2. The crux of the prosecution case is that: on 04.02.20243, at around 4.00 hours, the accused were found in possession of 3.41 grams of MDMA in a car The accused were bearing Reg.No.KL-58-X-2721. arrested at the spot with the contraband article. Thus, _B.A.No.4175/2024_ _-:3:-_ the accused have committed the above offences. 3. Heard; Sri.A. Arunkumar, learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. In fact, the petitioner was nowhere at the scene of incident. The petitioner has submitted Annexure-AI application under the Right to Information Act, 2005, before the Investigating Officer, to hand over the CCTV footages. He has also submitted a complaint to the Hon'ble Chief Minister of the State of Kerala to hand over the investigation to some other agency. Even though the petitioner filed an application for pre-arrest bail, by Annexure-AIV order, the same was dismissed. Subsequently, the petitioner filed Crl.M.C. No.438/2024 before the Court of Session, _B.A.No.4175/2024_ _-:4:-_ Kasaragod, to enlarge him on bail, but the same was also dismissed by Annexure-AV order. The petitioner has been in judicial custody since 25.04.2024, the contraband involved in the case is of an intermediate quantity and the investigation in the case is complete. Therefore, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter-alia, opposing the application on the ground that the petitioner is a person with criminal antecedents, since he is involved in 13 other cases, out of which two cases are under the NDPS Act. In fact, the petitioner has been convicted in one case for committing the offence under the NDPS Act. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Therefore, the application may be dismissed. 6. The prosecution allegation against the _B.A.No.4175/2024_ _-:5:-_ petitioner is that he, along with the first accused, were found in conscious possession of 3.41 grams of MDMA and were arrested at the spot. It may be true that the contraband involved in the case is of an intermediate quantity. But, it is not disputed that the petitioner has been convicted of committing an offence under the NDPS Act, and he is also an accused in another crime for allegedly committing offence under the NDPS Act. The materials on record also reveal that the petitioner is accused in 11 other crimes for committing offences under the Indian Penal Code. Therefore, it is apparent that the petitioner is an inveterate offender. Although the rigour under Section 37 of the NDPS Act may not apply, since the contraband involved in the case of an intermediate quantity, taking into account the fact that the petitioner is a person with criminal antecedents and he has been convicted for committing an offence under the NDPS Act, I am not inclined to enlarge the _B.A.No.4175/2024_ _-:6:-_ petitioner on bail. 7. 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”. ## 8. Similarly, in **Kalyan Chandra Sarkar v.** _B.A.No.4175/2024_ _-:7:-_ ## **Rajesh Ranjan** [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 9. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner is a person with criminal antecedents and stands convicted for committing an _B.A.No.4175/2024_ _-:8:-_ offence under the NDPS Act, there is every likelihood of him committing similar offences, if he is enlarged on bail, I am of the firm view that the petitioner is not entitled to be released on bail. Therefore, I hold that the petitioner would have to face custodial trial. In the result, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/12.06.24 //True copy// P.A. To Judge