SHAHANOOF K.P v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 BAIL APPL. NO. 8867 OF 2022** CRIME NO.29/2022 OF WAYANAD EXCISE RANGE. ## **PETITIONERS/ACCUSED:** SHAHANOOF K.P AGED 33 YEARS S/O KHAMARUDHEEN, K.K. HOUSE, AANJILAMPARAMBU, THAVALAKKULAM ROAD, ARAKKINAR BHAGAM, BEPORE VILLAGE, KOZHIKODE, PIN - 673015 BY ADVS. SHARAN SHAHIER RAKHY BABY SONY SOLOMON ## **RESPONDENT/STATE:** THE STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERENAKULAM, PIN - 682031 BY SR. PUBLIC PROSECUTOR SMT.TV NEEMA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 8867 OF 2022 2** ## **ORDER** Dated this the 15[th] day of March, 2023 This is an application for regular bail, filed by the sole accused in Crime No.29/2022 of Wayanad Excise Range. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents. 4. The case of the prosecution is that, at about 12.40 p.m. on 21.4.2022, while the de facto complainant and party were engaged in checking of vehicles at Noolpuzha on Bathery-Gundalpetta Road, when they searched a KSRTC bus, bearing Registration No.KL-15A-2048, it was found that, a person, carrying a bag on his lap, was not able to give proper reply about the contents of the bag. Accordingly, the bag was searched and 80 gms of MDMA was seized and he was nabbed. Pursuant to recovery and arrest, crime, alleging commission of offence punishable under Section 22(c) of the ## **BAIL APPL. NO. 8867 OF 2022 3** Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter). 5. While pressing for regular bail to the petitioner, the main point argued by the learned counsel for the petitioner is that, nothing recovered from the conscious possession of the petitioner and the recovery was from an abandoned bag inside the KSRTC bus and for which, the petitioner has no nexus. It is pointed out further that the petitioner has been in custody from 21.4.2022 and therefore, he is liable to be released on bail in case, where final report already filed. 6. Whereas, it is submitted by the learned Public Prosecutor that, in this case, contraband was seized from a bag, kept at the lap of the de facto complainant at the time when search was conducted inside the KSRTC bus. It is submitted further that, eventhough as per the Chemical Analysis Report, the contraband was found to be Methamphetamine and not MDMA, the quantity of Methamphetamine is 80 gms, the same is commercial quantity. Therefore, this Court cannot grant bail, without satisfying the twin conditions provided under Section 37 of the **BAIL APPL. NO. 8867 OF 2022 4** NDPS Act. 7. In order to address the arguments advanced by the learned counsel for the petitioner, I have perused the recovery mahazar and it is noticed that recovery was from the bag kept at the lap of the petitioner and therefore, the arguments raised by the learned counsel for the petitioner on the ground that nothing seized from the conscious possession of the petitioner, could not be digested, as the prosecution records would establish prima facie that, recovery was from the conscious possession of the petitioner. The legal position is not in doubt on the point that when the quantity of contraband is commercial in nature, the rigor under Section 37 of the NDPS Act would apply and therefore, this Court can grant bail only after satisfying the twin conditions provided therein. 8. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: _37. Offences to be cognizable and non-bailable.--_ - _(1) Notwithstanding anything contained in the Code of Criminal_ **BAIL APPL. NO. 8867 OF 2022 5** _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 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._ 9. 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. 10. The Apex Court considered the meaning of **BAIL APPL. NO. 8867 OF 2022 6** ‘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. 11. It was further held that the Court while considering the application for bail with reference to S.37 of the 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 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. 12. While considering the rider under Section 37 of the **BAIL APPL. NO. 8867 OF 2022 7** 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** . **BAIL APPL. NO. 8867 OF 2022 8** 13. 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 not grant bail without recording satisfaction of the above twin ingredients. 14. 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. **BAIL APPL. NO. 8867 OF 2022 9** 15. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- **A. BADHARUDEEN JUDGE** Bb