Sarath Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946** **BAIL APPL. NO. 2986 OF 2024** **CRIME NO.117/2023 OF KOLLENGODE POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED NO.2:** **SARATH RAJ AGED 29 YEARS S/O RAJU, GAYATHRI BHAVAN, KARIKODE PERUR, TKMC POST, KOLLAM, PIN - 691005** **BY ADV C.S.SUMESH** ## **RESPONDENT/STATE AND INVESTIGATING OFFICER:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER KOLLENGODE POLICE STATION, KOLLENGODE, PALAKKAD DISTRICT, PIN – 678506** **SRI.RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.04.2024** **AND THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 2986 OF 2024** **2** **O R D E R** Dated this the 20[th] day of May, 2024 This is the fifth application for regular bail filed by the 2[nd] accused in crime No.117/2023 of Kollengode Police Station, Palakkad, where the accused alleged to have committed offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act' hereinafter). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents form part of the case diary produced by the learned Public Prosecutor and the report of the Investigating Officer. 4. While deciding the third bail application, i.e., B.A.No.10198/2023, this Court dismissed the same acting on the report of the learned Special Judge with direction to expedite the trial as reported, within a period of six months. The said period of six months is available till 18.07.2024. **BAIL APPL. NO. 2986 OF 2024** **3** 5. While deciding the fourth application, i.e., B.A.No.1616/2024, this Court dismissed the same on the grounds that there was no change in circumstances and on finding that nothing established to dilute the rider under Section 37 of the NDPS Act. 6. This 5[th] application for regular bail has been filed, after dismissal of the 4[th] application by order dated 01.04.2024 by the petitioner as per Annexure A2, on the specific ground that the petitioner will have to undergo surgery on his left knee, as recommended by the Ortho Specialist at Government Medical College, Thrissur. 7. It is submitted by the learned counsel for the petitioner that the petitioner would require urgent surgery otherwise, his condition would become dangerous. 8. Per contra, the learned Public Prosecutor submitted that as instructed by the Superintendent, Central Prison and Correctional Home, Viyyur, Thrissur, the petitioner has been given treatment at Government Medical College, Thrissur, and **BAIL APPL. NO. 2986 OF 2024** **4** he was not willing to undergo surgery at Government Medical College, Thrissur. Therefore, it is submitted that in a case involving commercial quantity of contraband, the petitioner could not be released on bail by diluting the rider under Section 37 of the NDPS Act, since proper medical treatment including surgery would be given by the Jail Authority. 9. In fact, as per Annexure A2 order dated 01.04.2024, this Court dismissed the fourth application for regular bail by the petitioner, which reads as under: _“This is the fourth application for regular bail filed by accused Nos.2 and 3 in Crime No.117/2023 of Kollengode Police Station, Palakkad, where they alleged to have committed offences under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act._ _2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor._ _3. I have perused the relevant documents form part of the case diary produced by the learned Public Prosecutor and the report of the Investigating Officer._ _4. While deciding the third bail application, ie., B.A.No.10198/2023, this Court dismissed the same acting on the report of the learned Special Judge with a direction to expedite the trial as reported, within a period of six_ **BAIL APPL. NO. 2986 OF 2024** **5** _months. The said period of six months is available till 18.07.2024. Thus it appears that this application has been filed without any change in circumstances and without bonafides._ _5. While dismissing the third application, B.A.No.10198/2023, this Court held as under:_ _“This is a regular bail application, filed by accused Nos.2 and 3 in Crime No.117/2023 of Kollengode Police Station, Palakkad._ _2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor, in detail._ _3. I have perused the case diary, as such._ _4. The prosecution case is that, at 17.30 hrs. on 13.2.2023, when accused Nos.1 to 5 were engaged in transport of 88.880 grams of MDMA in a Maruthi Ignis Car, bearing Registration No.KL-02BC-8777, they were intercepted and accordingly, the above said quantity of contraband seized. Since it was found by the detecting officer that the accused were jointly engaged in transporting of contraband, they were questioned and nabbed along with the contraband. Accordingly, crime was registered, alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’ hereinafter)._ 5. _The learned counsel for the petitioners submitted that two earlier applications, viz., B.A.No.3499/2023 and B.A.No,5594/2023, filed at the instance of the 3rd accused, were dismissed. B.A.No.3499/2023 was dismissed for non-prosecution and B.A.No.5594/2023 was dismissed as not pressed. It is also submitted that the 2nd accused moves for regular bail for the first time. The learned counsel further submitted that the petitioners have no criminal antecedents and they are innocent. According to him, the entire case is a fabricated story and therefore, the petitioners, who have been in custody from_ **BAIL APPL. NO. 2986 OF 2024** **6** _13.2.2023, are liable to be released on bail, since their custody for the purpose of investigation in this matter has been completed._ _6. Strongly opposing bail to the petitioners in this crime, the learned Public Prosecutor submitted that, this is red-handed recovery of 88.880 grams of MDMA, while the accused were jointly transporting the same, for the purpose of sale and in this matter, investigation already completed and charge filed before the Special Court. Therefore, release of the petitioners is not permitted, in view of the bar under 37 of the NDPS Act. As such, the trial should be completed, keeping their custody._ _7. In this matter, a report from the learned Special Judge, Palakkad, dealing with S.C.No.758/2023, arose out of this crime, was obtained. As per report, dated, 9.1.2024, the learned Special Judge reported that the trial in this matter could be completed within a period of 6 months._ _8. On perusal of the case diary, it could be gathered that the accused were nabbed at Valluvakund in Kollengode Nenmara public road. Accused Nos.1 to 3 are natives of Kollam District and 4th accused is a native of Idukki and 5th accused is a native of Ernakulam District. They were jointly found in possession of commercial quantity of contraband and the prosecution records would establish commission of offence punishable under Section 22(c) of the NDPS Act, prima facie._ _9. Insofar as grant of bail to an accused, who involved in commercial quantity of contraband is concerned, Section 37 of the NDPS Act, is an absolute rider and for granting bail, the court should have to satisfy the twin conditions therein. 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;_ **BAIL APPL. NO. 2986 OF 2024** **7** _(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._ _10. 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._ _11. 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._ _12. It was further held that the Court while considering the application for bail with reference to S.37 of the NDPS 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_ **BAIL APPL. NO. 2986 OF 2024** **8** _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._ _13. 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 v. Rajesh** [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is one reported in [2023 Crl.L.J.799],_ _**Union of India v. Jitendra Giri** ._ _14. 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_ **BAIL APPL. NO. 2986 OF 2024** **9** _not grant bail without recording satisfaction of the above twin ingredients. 15. Thus, 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 the offence and he will not likely to commit any offence while on bail._ _16. On perusal of the case diary along with the prosecution records, this Court could not dilute the rider under Section 37 of the NDPS Act, in any manner to grant bail to the petitioners. Therefore, this bail application must fail and is accordingly dismissed, with direction to the learned Special Judge, Palakkad, to expedite the trial, as reported.”_ _Therefore, this bail application absolutely lacks merit and hence deserves dismissal. Accordingly, the bail application stands dismissed.”_ 10. In order to address the grievance of the petitioner, in the matter of treatment, a report from the Superintendent, Central Prison and Correctional Home, Viyyur, Thrissur, has been called for. As per the report dated 21.04.2024 submitted along with Medical Evaluation Certificate issued by a Medical Officer, Central Prison and Correctional Home, Viyyur, Thrissur on 20.04.2024, it has been submitted that periodical treatment for the trauma, which happened three years ago, has been given properly. In the Medical Evaluation Report, it is stated **BAIL APPL. NO. 2986 OF 2024** **10** that the petitioner would undergo surgery at Government Medical College, Thrissur, but he was not willing for the same. Thus, it appears that the petitioner is not ready to go for surgery which could be done at Medical College, Thrissur, that too in relation to a trauma three years before, without any reasons and his attempt is to project surgery as a reason for release on bail. The said attitude is not acceptable and therefore, surgery is not a reason to grant bail to the petitioner. As per the report, it appears that the surgery necessary for the petitioner could easily be done at Government Medical College, Thrissur and therefore, the petitioner does not deserve bail on that ground. Therefore, with direction to the Superintendent, Central Prison and Correctional Home, Viyyur, Thrissur, to give necessary treatment, as advised by the doctors, without fail, this bail application is dismissed. ## **Sd/A. BADHARUDEEN JUDGE** nkr