Sharafudheen v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 20[TH] DAY OF FEBRUARY 2023/1ST PHALGUNA, 1944 BAIL APPL. NO.611 OF 2023** **AGAINST THE ORDER/JUDGMENT IN SC 836/2021 OF ADDITIONAL DISTRICT COURT, THRISSUR IN CRIME NO.2299/2020 OF CHAVAKKAD POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED NO.2:** SHARAFUDHEEN, AGED 33 YEARS, S/O.MUHAMMAED, KIZHAKKETHARA HOUSE, EDAKKAZHIYUR VILLAGE, NALAMKALLU DESOM, CHAVAKKAD TALUK, THRISSUR, PIN – 680515. BY ADVS. V.V.JOY RAMAKRISHNAN M.N. ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY ADV. SMT.T.V.NEEMA, SR. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.611 of 2023** 2 ## **O R D E R** ## **Dated, this the 20[th] February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, 1973 and the petitioner is the 2[nd] accused in crime No.2299/2020 of Chavakkad Police Station, Thrissur, where he alleged to have committed offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as 'NDPS Act', for short), pending as S.C. No.836/2021 before the Special Court, Thrissur and the petitioner seeks regular bail. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Perused the relevant documents placed by the learned Public Prosecutor form part of the Case Diary and the report of the Investigating Officer. 4. The prosecution allegation is that at ## **B.A. No.611 of 2023** 3 6:55 p.m. on 22.12.2020, the 1[st] accused possessed 2170 gm of Hashish oil, in his jeans pocket and in 26 plastic boxes, against the prohibitions contained in the NDPS Act. Accordingly, he was arrested along with the contraband and crime registered alleging the above offences. Thereafter, the 1[st] accused given statement to the effect that the Hashish oil was obtained from one Rajesh at Dindigul and the boxes for carrying Hashish oil in Omni Van was made by the petitioner herein. On this disclosure statement, the so called Omni Van bearing registration No.KL-08Y-7946 was recovered. On this premise, the petitioner was taken into custody arraying him as the 2[nd] accused. 5. The learned counsel for the petitioner argued at length to convince this Court that the petitioner is innocent and his complicity in this crime is one arising out of the confession statement of the 1[st] accused alone. Highlighting ## **B.A. No.611 of 2023** 4 his custody from 26.08.2021 and the progress of investigation, the learned counsel pressed for grant of regular bail. 6. Whereas, the learned Public Prosecutor strongly opposed the bail on the submission that the petitioner is a person, who made boxes in the Omni Van to carry the contraband involving commercial quantity and, therefore, his complicity could not be read in severance. It is pointed out further that the petitioner is having criminal antecedents and he has involvement in 11 crimes and this is the 12[th] crime. It is pointed out further that he had involvement in 4 NDPS cases. The following are the crimes, where the involvement of the accused has been reported. 1. Chavakkad PS Cr.367/10 U/s.435, 34 IPC. 2. Chavakkad PS Cr.1713/13 U/s.119(A) KP Act. 3. Chavakkad PS Cr.480/16 U/s.151 Cr.P.C. 4. Chavakkad PS Cr.94/18 U/s.323, 447 IPC. 5. Chavakkad PS Cr.649/18 U/s.107 Cr.P.C. 6. Malappuram PS Cr.594/2016 U/s.27 of NDPS Act. **B.A. No.611 of 2023** **==> picture [7 x 9] intentionally omitted <==** 7. Thrissur East PS Cr.1492/21 U/s.20(b) (ii)(B) of NDPS Act. 8. Vadakkekad PS Cr.150/06 U/s.143, 147, 148, 452, 427, 149 IPC. 9. Kadavanthra PS Cr.669/19 U/s.379, 465, 468, 471 IPC. **==> picture [322 x 32] intentionally omitted <==** 11. Kunnamkulam Excise Cr.3/15 U/s. 20(b) (ii)(A) of NDPS Act. **==> picture [394 x 12] intentionally omitted <==** are cases registered alleging commission of offences under the NDPS Act and this is the 4[th] crime, the petitioner has involvement. Therefore, there is no reason to disbelieve the prosecution case and the complicity of the petitioner in this case also. 8. 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 nonbailable.--_ _(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--_ **B.A. No.611 of 2023** 6 - _(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 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._ 9. On a perusal of the Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of an accused 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 7 ## **B.A. No.611 of 2023** ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail. 10. 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. 11. 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 **B.A. No.611 of 2023** 8 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. 12. 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**_ [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], ## **B.A. No.611 of 2023** 9 _**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]. Latest decision on this point is _**Union of India v. Jitentra Giri**_ [2023 Cri.LJ 799]. 13. 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 ## **B.A. No.611 of 2023** 10 conjunctively and not disjunctively. Therefore satisfaction of both conditions are _sine qua non_ for granting bail to an accused who alleged to have been 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. Therefore, I am of the view that the petitioner does not deserve bail. Accordingly, this bail application stands dismissed. ## **A.BADHARUDEEN, JUDGE.** ww 11 ## **B.A. No.611 of 2023** ## **APPENDIX OF BAIL APPL.611/2023** ## PETITIONER'S ANNEXURES: ANNEXURE 1 A CERTIFIED COPY OF THE LATEST ORDER DATED 05.01.2023 IN CRL.M.P.4404/2022 IN SC.NO.836/2021 OF THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR. ANNEXURE 2 A TRUE COPY OF THE FINAL REPORT IN CRIME NO.2299/2020 OF CHAVAKKAD POLICE STATION, NUMBERED FINAL REPORT/CHARGE SHEET NO.594/21, DATED 20.09.2021.