SHAJI @ BOMBAY THALAYAN SHAJI v. STATE OF KERALA

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ``` BAIL APPL. NO. 3841 OF 2023 ``` ``` CRIME NO. 1126 OF 2022 OF KORATY POLICE STATION ``` ## `PETITIONER/ACCUSED NO.1:` ``` SHAJI @ BOMBAY THALAYAN SHAJI AGED 46 YEARS,S/O KUMARAN, CHAKKALAKKAL HOUSE,KUNNAPPILLI, DEVARAJAGIRI DESOM, MELOOR VILLAGE, THRISSUR DISTRICT, PIN - 680311 ``` ``` BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH ``` ## `RESPONDENT/STATE & COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE STATION HOUSE OFFICER KORATTY POLICE STATION, THRISSUR DISTRICT, PIN - 680308 BY SRI. MP PRASANTH SRPP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BAIL APPL. No. 3841 of 2023 `2` ## O R D E R ## Dated this the 25[th] day of May, 2023 This is an application for regular filed bail by the 1[st] accused in Crime No. 1126/2023 of Koratty Police Station, Thrissur. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor. 4. The prosecution case is that, at about 12.15 hrs on 31.12.2022, the petitioner, who is arrayed as the 1[st] accused in this crime, was found in possession of 33.430 grams of MDMA, for the purpose of sale against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act, Accordingly, he was nabbed red handedly. Pursuant to the occurance, crime alleging commission of offences punishable under Section 22 (c) of the NDPS Act was registered. Subsequently, investigation revealed involvement of other accused also. 5. While pressing for regular bail to the petitioner, who alleged to have possessed commercial quantity of contraband, the learned counsel for the petitioner submitted that the petitioner has been in BAIL APPL. No. 3841 of 2023 `3` custody from 31.12.2022. Therefore, the petitioner is liable to be released on regular bail. 6. Whereas, the learned Public Prosecutor submitted that in this matter, the commercial quantity of contraband was seized from the possession of the petitioner and in such a case, this Court cannot grant bail without satisfying conditions provided under Section 37 of the NDPS Act. It is also pointed out that this is the 12[th] crime registered against the petitioner and he has involvement in 11 crimes prior to this occurrence. It is also submitted that five among other crimes are under the NDPS Act. Therefore, the petitioner cannot be released on regular bail. 7. On perusal of the available records, this is a case of red handed recovery of 33.43 grams of MDMA from the hands of the petitioner and the petitioner is a person having criminal antecedents and he has involvement in following crimes: 1. Kodakara PS Cr. 505/2007 u/s 41(1)(d)Cr.PC altered 109 Cr.PC. 2. Chalakkudy PS Cr. 04/2003 u/s 511, 379 IPC 3. Chalakkudy PS Cr. 636/2005 u/s 20(b), 332 IPC 4. Chalakkudi PS Cr.165/2006 u/s 225(b), 332 IPC 5. Chalakkudy PS Cr. 1638/2012 u/s 20 (b) (ii)B of NDPS Act BAIL APPL. No. 3841 of 2023 `4` 6. Koratty PS Cr. 1453/2017 u/s 379 IPC 7. Koratty PS Cr. 1410/2020 u/s 20(b) (ii) B of NDPS Act 8. Thrissur Town West PS CR.182/2020 u/s 379 IPC 9. Peechi PS Cr. 985/2013 u/s 20(b)(ii)B of NDPS Act 10. Chalakkudy Excise Cr. 02/2014 NDPS Act 11. Irinjalakkuda PS Cr. 563/2013 u/s 20(b),(ii) B of NDPS Act 8. It is the shocking note that, this is the 6[th] NDPS crime and 12 crimes registered against the petitioner. The petitioner is a habitual offender and he has been repeatedly involving in crimes on getting released on bail. Apart from that, this Court cannot grant regular bail to the petitioner who got involvement in possession of commercial quantity of contraband without satisfying the conditions mentioned under Section 37 of NDPS Act. 9. 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 Procedure, 1973 (2 of 1974),-- - (a) every offence punishable under this Act shall be cognizable; BAIL APPL. No. 3841 of 2023 `5` (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. 10. 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. BAIL APPL. No. 3841 of 2023 `6` 11. The Apex Court considered the meaning of ‘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. 12. 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. 13. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotics Central Bureau v. R.Paulsamy BAIL APPL. No. 3841 of 2023 `7` [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 . 14. 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 BAIL APPL. No. 3841 of 2023 `8` 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. 15. 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. 16. 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 mtk