Sharafudheen v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 BAIL APPL. NO. 11582 OF 2023 ``` ``` CRIME NO.2299/2020 OF Chavakkad Police Station, Thrissur AGAINST THE ORDER IN SC 836/2021 OF III ADDITIONAL DISTRICT COURT, THRISSUR / II ADDITIONAL MACT, THRISSUR ``` ## `PETITIONER/ACCUSED:` ``` SHARAFUDHEEN, AGED 36 YEARS S/O. MUHAMMED, KIZHAKKETHARA HOUSE, NALAMKALLU, EDAKKAZHIYUR VILLAGE, THRISSUR, PIN - 680516 ``` ``` BY ADVS. BALAMURALI K.P. SREEJITH.M.R SREEDEV U HARIPRIYA.M ATHEESHA M.V. RENIL IQUBAL K. ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SSMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No. 11582 of 2023 2 ## Dated this the 15[th] day of January, 2024 O R D E R The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.2299/2020 of Chavakkad Police Station, Thrissur, registered against the accused( two in number) for allegedly committing the offences punishable under Sections 20(b)(ii) C and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’, for short). The petitioner was arrested on 26.08.2021. 2. The gist of the prosecution case is that: on 22.12.2020 at about 6.55 PM, the first accused was found in possession of 1752 grams of Hashish oil kept in his jeans pocket and in 26 plastic boxes kept in the dickey of Maruti Swift car bearing Registration No. KL-46-L-7640 for sale. The said contraband article was B.A.No. 11582 of 2023 3 handed over by the second accused to the first accused. Thus, the accused have committed the above offences. 3. Heard; Sri. Balamurali. K.P., the learned counsel for the petitioner and Smt. Seetha. S, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. The petitioner has been falsely implicated in the crime on the basis of the alleged confession of the first accused. The petitioner has been in incarceration since 26.08.2021. The first accused has been enlarged on bail. Thus, the petitioner is entitled for a similar order. 5. The learned Public Prosecutor vehemently opposed the application. She submitted that the petitioner has criminal antecedents. He is an accused in 11 cases, out of which four cases are registered against him for committing offences under the NDPS Act. It was B.A.No. 11582 of 2023 4 the petitioner, who supplied the contraband article to the first accused. The contraband article is of commercial quantity. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. The prosecution allegation is that the petitioner has sold the contraband article, which is of commercial quantity to the first accused. 7. 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 nonbailable .—(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 B.A.No. 11582 of 2023 5 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.” 8. 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 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. 9. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable B.A.No. 11582 of 2023 6 ## 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”. ## 10. In Union of India v. Mohd. Nawaz Khan [(2021) 10 SCC 100], the Honourable Supreme Court, after 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”. B.A.No. 11582 of 2023 7 11. 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. 12. 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 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”. B.A.No. 11582 of 2023 8 ## 13. Similarly, in Kalyan Chandra Sarkar v. Rajesh Ranjan , [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11. The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338)”. On a consideration of the materials placed on record, I am not at this stage satisfied that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if enlarged B.A.No. 11582 of 2023 9 on bail, so as to dilute the rigour under Sec.37 of the Act. The application is meritless and is only liable to be dismissed. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS, JUDGE** mtk/15.01.24 B.A.No. 11582 of 2023 10 ## `APPENDIX OF BAIL APPL. 11582/2023` ``` PETITIONER ANNEXURES ``` ``` Annexure 1THE TRUE COPY OF THE ORDER SHEET OF THE ADDL. DISTRICT AND SESSIONS COURT-III, THRISSUR DATED 14/12/2023. Annexure 2THE TRUE COPY OF THE BAIL ORDER DATED 24/11/2023 IN CRL.M.P. NO.5511/2023 OF ADDL. DISTRICT AND SESSIONS COURT-III, THRISSUR. Annexure 3THE TRUE COPY OF THE BAIL ORDER OF THE HON'BLE APEX COURT IN SPECIAL LEAVE APPEAL (CRL.) NO. 4169/2023 DATED 13/07/2023. Annexure 4THE TRUE COPY OF THE BAIL ORDER OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN CRM-M-12940/2021 - KUSHI RAM @ HAPPY VS. STATE OF PUNJAB (NEUTRAL CITATION NO:2023:PHHC:127731) DATED 03/10/2023. ```