Shameer s/o Moideen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **Bail Appl..No.8678 OF 2019** **CRIME NO.938/2019 OF INFOPARK POLICE STATION, ERNAKULAM** ## **PETITIONER:** **SHAMEER AGED 25 YEARS S/O. MOIDEEN, UNNIKODE PARAMBIL HOUSE, PUTHOOR P O, KODUVALLY, KOZHIKODE-673572.** **BY ADVS. SRI.TITUS MANI SRI.T.G.RAGESH SRI.P.A.JACOB SRI.BINNY THOMAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** ## **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **SRI C.K SURESH SR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.8678 OF 2019 2 ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the accused in Crime No.938 of 2019 of the Infopark Police Station, Kakkanad. In the aforesaid case, he is accused of having committed offene punishable under Sections 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On 13.9.2019, source information was received by the Sub Inspector of Police, Infopark Police Station that the applicant herein was standing near the East Gate of Infopark and he was engaged in the sale of narcotics. A report under section 42 of the NDPS Act was dispatched to the superior officer and he proceeded to the spot. They spotted the applicant and on seeing the police personnel, he tried to escape. He was apprehended and he was informed of his rights to be searched in the presence of a Gazetted officer. In the presence of the Narcotics expert of the Narcotics Control Bureau, a search was conducted. It was found that he had kept in the trouser pocket, a gold flake cigarette pack and on examination, it was Bail Appl..No.8678 OF 2019 3 found to contain LSD strips and 32 Ecstasy tablets. The LSD was found to weigh 0.1 gm. The contraband was seized and labelled as per a mahazar and the accused was arrested. On the next day itself, the contraband was produced before the learned Magistrate. An inventory was prepared under Section 52A of the Act and the same was certified by the learned Magistrate. The applicant has been in custody from 13.9.2019. 4. Sri.Titus Mani Vettom, the learned counsel appearing for the applicant, submitted that the applicant is totally innocent and that he was trapped. He would point out that the LSD was weighed in an open area and the chances of minor discrepancies is very high. What has been seized is just 0.1 gm which is the minimum fixed for commercial quantity. He would further contend that Ecstasy tablet is otherwise known as Love pill and even from the mahazar it is evident that he was waiting for his girl friend. It was meant for personal use is the submission. He would further contend that a perusal of the mahazar would show that the sampling and seizure was not in terms of procedure prescribed under law. The sample seal of the detecting officer has not been affixed in the mahzar and if that be the case, it cannot be said for certain that the contraband which was seized was the item which reached the learned Magistrate. Much reliance is placed on a decision of this Court in Mohanan v. State of Kerala [2014 (2) KLT 427] to Bail Appl..No.8678 OF 2019 4 bring home his point that if no specimen impression of the seal is shown in the mahazar, the same is a fatal folly. 5. The learned Public Prosecutor has very strenuously opposed the prayer. 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.8678 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. Curiously enough, the contention of the applicant is that he was waiting for his girl friend and Bail Appl..No.8678 OF 2019 6 justifies the possession of Ecstasy tablets. The contention that the absence of specimen impression of the seal will render the whole prosecution version suspect cannot be accepted. The contraband was seized in the presence of Gazetted officer and witnesses and being heat sensitive chemicals, the sealing by applying hot wax might have been avoided. That cannot be a reason to reject the whole prosecution case. The next contention advanced by the learned counsel that LSD was weighed in open and they were bound to be discrepancies in weight also cannot be accepted. The contraband seized was produced before the learned Magistrate without delay under Section 52A of the Act and an inventory was prepared. The LSD was reweighed and it was found to be 0.1 gm., which is categorized as commercial quantity in India. 9. One cannot escape notice that criminal networks traffic a range of drugs including LSD, 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 Bail Appl..No.8678 OF 2019 7 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 **Punjab v. Baldev Singh[2]** , 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 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. 10. 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 2 [AIR 1999 SC 2378] Bail Appl..No.8678 OF 2019 8 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. 11. 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 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