SHAJAN v. THE STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **Bail Appl..No.8564 OF 2019** **CRIME NO.3/2019 OF TRIVANDRUM EXCISE CIRCLE OFFICE , THIRUVANANTHAPURAM** ## **PETITIONER/5TH ACCUSED:** **SHAJAN AGED 28 YEARS S/O.MOHANAN, RESIDING AT T.C.NO.20/27, DR.AMBEDKHAR NAGAR, POOJAPPURA.P.O, THAMALAM DESOM, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-673004** **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.** ## **RESPONDENT/STATE:** **THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, DISTRICT COURT ERNAKULAM, PIN-68203** ## **SMT K SHEEBA SR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.8564 OF 2019 2 ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 5[th] accused in S.C No.1426 of 2019 on the files of the Additional Sessions Court-IV, Thiruvananthapuram. In the aforesaid case, he along with the rest of the accused face indictment under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On 22.3.2019, secret information was received by the Excise Circle Inspector that narcotic drugs were being trafficked in a white Innova car by one Shaffeeq and Shajan and the prohibited drugs were meant for one Saif, a relative of the aforesaid Shaffeeq. He along with the police party laid wait and they spotted the Innova car. The vehicle was intercepted and it was found that five persons were travelling inside the car. The applicant was found sitting in the front passenger seat and Shafeeq was seen sitting behind the steering wheel. Three persons were found sitting in the back seat. After informing the accused of their rights under section 50 of the Act, Bail Appl..No.8564 OF 2019 3 search of the person of the accused were carried out. Thereafter the vehicle was searched. From the inside panel of the rear door, 13 packets containing Hashish oil weighing about 13.502 kgs. were seized. The contraband was sampled and sealed in accordance with law and the accused were arrested. Investigation revealed that the accused Nos. 4 and 5 had travelled to Dindigal in a car arranged by the aforesaid Saif and that they had purchased the narcotic drug for being transported to Kerala for sale. Detailed investigation was conducted and final report was laid before the jurisdictional court on 15.9.2019. The case was taken cognizance of by the learned Sessions Judge and is pending trial. 4. Sri.J.R.Prem Navaz, the learned counsel appearing for the applicant, submitted that the applicant is a driver by profession and his services were availed by the rest of the accused purely for professional reason. He points out that the applicant has been in custody from 23.3.2019 and as the final report has already been laid, there is no point in keeping him in custody as an under-trial prisoner. He also submitted that unlike the rest of the accused, the applicant herein has clean antecedents and there cannot be any apprehension that he would commit similar offences if released on bail. Bail Appl..No.8564 OF 2019 4 5. The learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that quantity over and above 1 kg. of Hashish is regarded as commercial quantity. What has been seized from the possession of the applicant herein is four times the quantity fixed as commercial. According to the learned Public Prosecutor, unless the applicant satisfies the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the applicant cannot be released on bail. Much reliance is placed on the decision of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari[1]** to support his contentions. 6. I have considered the submissions advanced and have gone through the materials made available. 7. It is by now settled that the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case, where 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. It is manifest that the conditions are 1 (2007) 7 SCC 798 Bail Appl..No.8564 OF 2019 5 cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds”, which 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. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. 8. Having carefully considered the materials in the final report, I find that enough materials have been collected by the prosecution to link the applicant herein with the trafficking of drugs. The records reveal that the applicant travelled in a car from Thiruvananthapuram to Dindigal with a Bail Appl..No.8564 OF 2019 6 sum of Rs.8 lakhs and a mobile phone and collected the Hashish oil and came back to the State for the puprose of distribution and sale. The contention of the learned counsel that the applicant herein is merely a driver who had gone to Tamil Nadu for a routine trip cannot be accepted. The quantity that has been seized is 10 times the quantity fixed as commercial in the Statute. Criminal networks traffic a range of drugs including cannabis, cocaine, heroin and methamphetamine. As international borders become increasingly porous, global abuse and accessibility to drugs have become increasingly widespread. This international trade involves growers, producers, couriers, suppliers and dealers. It affects almost all the countries by undermining political and economic stability, ruining the lives of individuals and damaging communities. The end-users and addicts are often the victims of a powerful and manipulative business. Drug trafficking is often associated with other forms of crime, such as money laundering or corruption. Trafficking routes can also be used by criminal networks to transport other illicit products. As held by the Apex Court in **Baldev Singh** (supra), drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including terrorist activities. Drug trafficking, trading Bail Appl..No.8564 OF 2019 7 and its use have become a global phenomena and has acquired the dimensions of an epidemic. It affects the economic policies of the State, destroys the young and healthy and corrupts the system. 9. In that view of the matter, while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level. 10. Having carefully weighed all the contentions advanced before this Court and after perusing the records, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. Furthermore , it would not be possible to conclude that the applicant is not likely to commit any offence while on bail. I hold that Bail Appl..No.8564 OF 2019 8 the applicant has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** IAP