Shajan Thomas and Arun Naik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945** ## **BAIL APPL. NO. 889 OF 2024** **CRIME NO.310/2023 OF NEDUPUZHA POLICE STATION, THRISSUR** **AGAINST THE ORDER IN CRMP NO.6191 OF 2023 IN S.C.NO.1195/2023 OF ADDITIONAL SESSIONS COURT -IV, THRISSUR** ## **PETITIONERS/6TH AND 8TH ACCUSED:** **1 SHAJAN THOMAS, AGED 42 YEARS S/O.THOMAS MATHAI, PUTHUPARAMBIL VEEDU, KAITHAMATTAM, NELLIMATTAM.P.O., KATTAMANGALAM VILLAGE, ERNAKULAM DISTRICT, PIN - 686693** **2 ARUN NAIK, AGED 25 YEARS S/O. PRAKASH NAIK, ANTARBA GAVU, ADAVA P.O., GAJAPATHI, ODISHA STATE, PIN - 761217** **BY ADVS. VINOD S. PILLAI MOHAMMED THAYIB N.M. JERRY PETER AHAMMAD SACHIN K.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.889 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 6 and 8 in Crime No.310/2023 of the Nedupuzha Police Station, Thrissur, registered against the accused (10 in number) for allegedly committing the offences punishable under Sections 20(b) (ii)C, 27A, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioners were arrested on 14.06.2023 & 26.06.2023, respectively. 2. The crux of the prosecution case is that: the accused 1 to 4 along with the 6[th] accused went to the State of Odisha and purchased 108 packets of ganja weighing 220.910 kgs and transported the same in a Nissan Terrano car to the State of Kerala. The transaction was financed by the 9[th] accused and the contraband was supplied by the 8[th] accused. After the contraband reached the State of Kerala, the accused 7 & 8 were found in possession of the **BAIL APPL. NO.889 OF 2024** **3** above said contraband article. Thus, the accused have committed the above offences. 3. Heard; Sri.Vinod S. Pillai, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. The petitioners are in judicial custody since June, 2023. The investigation in the case is complete and final report has been laid. The accused 1 to 4, 5 & 7 have already been released on bail. There is no specific overt act alleged against the petitioners. Therefore, the petitioners may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. He contended that, it was the petitioners, who are the masterminds of the crime. The 6[th] accused went along with the accused 1 to 4 to the State of Odisha and purchased the contraband from the 8[th] accused and transported the contraband to the State of Kerala and sold **BAIL APPL. NO.889 OF 2024** **4** the same through the accused 7 & 8. The petitioners cannot seek parity with that of the accused 1 to 4, 5 & 7 because accused 1 to 4 were released on statutory bail and accused 5 & 7 were released on bail since prima facie there was material to substantiate their involvement in the crime. On the contrary, there are incriminating materials against the petitioners to show their involvement in the crime. Since the quantity involved is of a commercial quantity, the rigour under Section 37 of the Act applies to the facts of the case. Hence, the application is only liable to be dismissed. 6. The prosecution allegation is that the accused 1 to 4 and 6 went to the State of Odisha and purchased 220.910 kg of ganja from the 8[th] accused, which was financed by the 9[th] accused. Subsequently, they brought the contraband together to Kerala and used accused 7 & 8 to sell the contraband. It was at this stage, the accused were arrested with the contraband. 7. A reading of the materials placed on record, it is revealed that the contraband is of a commercial quantity. **BAIL APPL. NO.889 OF 2024** **5** Therefore, the rigour under Section 37 of the Act applies to the facts of the case. 8. As rightly pointed out by the learned Prosecutor, the petitioners cannot seek parity with the other accused who have already been released on bail for the reasons already explained above. 9. Taking into account the commercial quantity that is involved in the case and the fact that the learned Sessions Judge had dismissed the petitioners' application for bail as per Annexure A1 order, considering the rigour under Section 37 of the Act, this Court had called for a report from the learned Sessions Judge to ascertain the reasonable time period that would be required to dispose of S.C.No.1195/2023, since the petitioners are under-trial prisoners. 10. Pursuant to the above order, the learned Sessions Judge, by communication dated 27.02.2024, has informed this Court that due to the huge pendency of cases before the said court, he requires at least 10 months time to dispose of **BAIL APPL. NO.889 OF 2024** **6** ## S.C.No.1195/2023. 11. 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 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.” 12. 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 **BAIL APPL. NO.889 OF 2024** **7** shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe 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. 13. 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”. ## 9. In **Union of India v. Mohd. Nawaz Khan [(2021)** **10 SCC 100]** , the Honourable Supreme Court, after **BAIL APPL. NO.889 OF 2024** **8** ## referring 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. 14. 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 **BAIL APPL. NO.889 OF 2024** **9** 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”. 15. After bestowing my anxious consideration to the fact, the materials placed on record, the rival submissions made across the Bar, the law referred to in the afore cited decisions and on comprehending the nature, seriousness and gravity, the accusation levelled against the petitioners, 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 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. However, considering the fact that the petitioners have now to face the proceedings as under-trial **BAIL APPL. NO.889 OF 2024** **10** prisoners and taking into account the report of the learned Sessions Judge dated 27.02.2024, I am of the view that the court below is to be directed to consider and dispose of the case in accordance with law, as expeditiously as possible. Resultantly, the application is dismissed. However, the learned Sessions Judge is directed to consider and dispose of S.C.No.1195/2023, as expeditiously as possible. **Sd/-** **C.S.DIAS** **JUDGE** **shg**