Shafeeq v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **Bail Appl..No.9121 OF 2019** **CRIME NO.3/2019 OF Trivandrum Excise Circle Office , Thiruvananthapuram** **PETITIONER/ACCUSED NO.4:** **SHAFEEQ, AGED 30 YEARS S/O.SAIFUDEEN, T.C.NO.71/2401, VALLAKADAVU, N.S.DEPOT, PETTAH, THIRUVANANTHAPURAM-695008.** **BY ADVS. SMT.T.RESHMA SRI.BIJITH S.KHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682031** ## **SRI.C.K.PRASAD PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06.01.2020, THE COURT ON 08.01.2020 PASSED THE FOLLOWING:** B.A.No.9121/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ ## B.A.No.9121 of 2019 ----------------------------------------------------Dated this the 8[th] day of January, 2020 ## **O R D E R** This is an application for bail filed under Section 439 Cr.P.C. 2. The petitioner is the fourth accused in the case registered as Crime No.3/2019 of the Excise Circle Office, Thiruvananthapuram under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 3. The prosecution case is that the accused in the case transported 13.424 Kilograms of hashish oil in the car bearing Reg.No.KL-20 E 9581. The contraband article was hidden inside the panels of the door of the vehicle. On 22.03.2019, at 01.00 hours, the Excise Circle Inspector of Thiruvananthapuram and party intercepted the vehicle at the road near Aakkulam Kendriya Vidyalaya and arrested the five accused from the spot and seized B.A.No.9121/2019 3 the hashish oil. It is alleged that the petitioner, who is the fourth accused in the case, was the driver of the car. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 5. Learned counsel for the petitioner contended that the petitioner was only the driver of the car in which the contraband article was hidden and that he had no knowledge of the presence of the contraband article in the vehicle. Learned counsel would contend that it was without his knowledge that the contraband article was hidden inside the vehicle. 6. Learned Public Prosecutor has opposed the application for bail. He has contended that, since the petitioner was the driver of the vehicle, the contraband article could not have been hidden inside it without his knowledge. 7. Prima facie, there are materials to show that the Excise Circle Inspector seized 13.242 Kilograms of hashish oil from the car KL-20 E 9581 which was driven by the petitioner and that the accused, who were travelling in that vehicle, were arrested from the spot. B.A.No.9121/2019 4 8. There is no dispute with regard to the fact that the hashish oil seized from the car constitutes commercial quantity as prescribed under the Act. Therefore, even if there is any error in the penal provisions under which the case is registered, it is immaterial. 9. Section 37 of the Act reads as follows: ## _“_ _**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;_ _(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_ B.A.No.9121/2019 5 _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. A plain reading of Section 37(1) of the Act would show that no person accused of an offence punishable under Section 19 or Section 24 or Section 27A of the Act and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application for bail. When the Public Prosecutor opposes the application, in order to grant bail, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations in granting bail specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force, on granting of bail. Section 37(1) of the Act curtails the freedom of the Court in B.A.No.9121/2019 6 granting bail and it creates restrictions on the power of the Court to release a person accused of the offences specified under clause (b) of that provision. 11. Apart from giving an opportunity to the Public Prosecutor to oppose the application, satisfaction of the court with regard to two matters is mandatory before granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) Section 37 of the Act. They are (i) reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) he is not likely to commit any offence while on bail. These two conditions are cumulative and not alternative. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 12. The satisfaction contemplated, regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the Act. It means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief B.A.No.9121/2019 7 contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both aspects, as noted above, is sine qua non for granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) of Section 37 of the Act. 13. However, while considering an application for bail with reference to Section 37 of the Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed the offence alleged against him. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. B.A.No.9121/2019 8 14. The aforesaid principles have been laid down by the Supreme Court in **Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798, Union of India v. Rattan Mallik : (2009) 2 SCC 624** and **Union of India v. Niyazuddin : AIR 2017 SC 3932** . 15. In the instant case, the petitioner was the driver of the car from which the hashish oil was seized. The contraband article was hidden inside the panels of the door of the vehicle. It is difficult to believe that, without the knowledge of the driver of the vehicle, the contraband article could have been hidden inside the panel of the door of the vehicle. Therefore, I find that, there are reasonable grounds for believing that the petitioner is guilty of committing the offence alleged against him. The presumption under Section 54 of the Act also operates against the petitioner. Unless the Court is satisfied with regard to the twin conditions mentioned under Section 37(1)(b) of the Act, the prayer for granting bail to the petitioner cannot be allowed. 16. It follows that the petitioner is not entitled to be released on bail in this case. The petition is liable to be B.A.No.9121/2019 9 dismissed. Consequently, the prayer for granting bail to the petitioner is rejected and the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/06/01/2020