Shahid and Ajmal v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 BAIL APPL. NO. 11622 OF 2023 ``` ``` CRIME NO.63/2023 OF Ernakulam Excise Range Office, Ernakulam ``` ## **`PETITIONERS/ACCUSED NOS.1 AND 2 :-`** ``` 1SHAHID,, AGED 27 YEARS S/O KUNJUMOIDEEN V.M, VADAKKETHALAKKAL HOUSE, SREENARAYANAPURAM VILLAGE, KODUNGALLUR, PIN – 680668 ``` ``` 2AJMAL, AGED 23 YEARS S/O ASHRAF V.U, VAIPPIN KATTIL HOUSE, SREENARAYANAPURAM VILLAGE, KODUNGALLUR. THRISSUR, PIN – 680668 ``` ``` BY ADV MANSOOR ALI ``` ## **`RESPONDENT/COMPLAINANT :`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` sr pp smt seetha s ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 2 ``` ## **C.S.DIAS,J** ## **======================** ## **B.A.No.11622 of 2023** ## **======================= Dated this the 20[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Occurrence Report No.63 of 2023 of the Ernakulam Excise Range Office, registered against the accused (three in number) for allegedly committing the offences punishable under Section 20(b)(ii)(A), 22(c) and 22(a), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioners were arrested on 19.12.2023. 2. The gist of the prosecution case is that: on 19.12.2023 at around 10.50 pm, the Excise Inspector and party seized 0.118 grams of LSD stamps, 0.231 grams of ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 3 ``` MDMA and 20 grams of Ganja from the possession of the accused 1 to 3 who were travelling in a motor car bearing Registration No.KL 47 J-3690 at Chalikkavattom, Poonithura Village, Kanayannur Taluk. The accused were arrested then and there on the spot with the contraband articles. Thus, the accused have committed the above offences. 3. Heard; Sri.Mansoorali, the learned counsel appearing for the petitioners and Smt.Settha S, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. There is no materials to substantiate the allegations in Annexure-I Occurrence Report. The petitioners are in judicial custody since 19.12.2023. The investigation of the case is practically complete and recovery has been effected. Hence, the petitioners are entitled to be released on bail. ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 4 ``` 5. The learned Public Prosecutor seriously opposed the application. The investigating officer has filed a bail objection report. It is interalia contended that the contraband articles were seized from the conscious possession of the accused. The investigation in the case is in progress. The contraband articles were seized are of a commercial quantity. Therefore, rigour under Section 37 of the Act applies to the facts of the case. If the petitioners are released on bail, it would hamper in the investigation. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused were found in conscious possession of 0.118 grams of LSD stamp, 0.231 grams of MDMA and 20 grams of Ganja. The LSD stamp is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. 7. 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 ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 5 ``` ## 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 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.” 8. 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 ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 6 ``` 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. 9. 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: “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”. ## 10. In **Union of India v. Mohd. Nawaz Khan [(2021) 10 SCC 100],** the Honourable Supreme Court, after referring ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 7 ``` ## 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”. 10. 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 Section 439 of the Code, while considering a bail application.” ## 11. 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 ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 8 ``` 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”. 12. After bestowing my anxious consideration to the fact, the materials placed on record, the rival submissions made across the Bar and also the law referred to in the afore cited decisions and on comprehending the nature, seriousness and gravity of the accusation leveled against the petitioners, that the investigation in the case is in progress and that the contraband is of a commercial quantity, I do not find any reasonable ground to hold that the petitioners have not committed the offences alleged against them and that ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 9 ``` they are not likely to commit the offence of a similar nature, if they are enlarged on bail. Therefore, I hold that the rigour under Section 37 of the Act applies to the facts and circumstances of the case. The application is meritless and is only to be rejected. Resultantly, the application is dismissed. **Sd/-** **C.S.DIAS, JUDGE** ## **SMA** ``` BAIL APPL. NO. 11622 OF 2023 ``` ``` 10 ``` ## **`APPENDIX OF BAIL APPL. 11622/2023`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure A1 ``` ``` TRUE CITIZEN COPY OF THE CRIME AND OCCURRENCE REPORT NO 63/2023 OF EXCISE RANGE OFFICE, ERNAKULAM DATED 20.12.202 ```