Shareef C. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 BAIL APPL. NO. 1025 OF 2023** **AGAINST THE ORDER/JUDGMENTCRMP 1669/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI CRIME NO.675/2022 OF KOTTAKKAL POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED:** SHAREEF.C AGED 29 YEARS S/O.MUHAMMED, CHEMMALA HOUSE, KOOTTANAD.P.O, PALAKKAD, PIN – 679533. BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY SENIOR PUBLIC PROSECUTOR SMT. T.V NEEMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13.03.2023, THE COURT ON 21.03.2023 DELIVERED THE FOLLOWING: B.A.No.1025 of 2023 2 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.1025 of 2023_ ================================ _Dated this the 21[st] day of March, 2023_ ## _**O R D E R**_ The 5[th] accused in Crime No.675/2022 of Kottakkal Police Station, Malappuram, canvasses regular bail in this petition filed under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary as such placed by the learned Public Prosecutor. 3. The prosecution case is that at about 10.30 a.m on . 12.10.2022, accused 1 to 3 possessed 44 gram of MDMA against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act' hereinafter) and accordingly, they were nabbed red-handedly. Pursuant to arrest and recovery, crime alleging commission of offences punishable under Sections 22(c) and 29 (1) of the NDPS Act was registered B.A.No.1025 of 2023 3 and is on investigation. During investigation, it has been revealed that the petitioner/5[th] accused together with other accused hatched conspiracy at Erod, Tamil Nadu and the petitioner collected 44 grams of MDMA from Erode and transported in a car being Registration No.KL 40T 3588 to Kottakkal in Malappuram district. Thereafter, the petitioner handed over the car along with the contraband to the 6[th] accused with instruction to hand over the same to the 4[th] accused on 12.10.2022. Then the 4[th] accused handed over the same to accused Nos.1 and 3 and while they were transporting the same, the contraband was taken into custody. 4. While pressing for regular bail to the petitioner, who has been in custody from 17.10.2022 onwards, the learned counsel for the petitioner pointed out that the petitioner is innocent and no materials available to justify incorporation of the petitioner as an accused in this crime. According to him, simply relying on the confession statement of the co-accused he was nabbed and detained in custody. Since no materials justifying his implication B.A.No.1025 of 2023 4 is available in the prosecution records, the petitioner deserves bail ignoring the rigour under Section 37 of the NDPS Act. 5. Whereas the learned Public Prosecutor zealously opposed the bail plea and submitted that in this case all the accused hatched conspiracy and it has been revealed during investigation that the 5[th] accused is the person, who purchased the contraband from Erode and transported the same to Kottakkal and handed over the same to the 6[th] accused. In support of his argument, the learned Public Prosecutor placed a statement of the co-accused as well as the call details between the accused just before the detection. The learned Public Prosecutor also submitted that the petitioner is having criminal antecedents and he got involved in Crime No.348/20221 of Erode Police Station and he had committed this offence while he has been in bail in the said case. It is also pointed out that since commercial quantity of contraband is involved, this Court annot grant bail ignoring the stipulations contained in Section 37 of the NDPS Act. B.A.No.1025 of 2023 5 6. On perusal of the case diary it could be noticed that initially accused 1 to 3 were arrested and thereafter the involvement of the 5[th] accused as a person who transported the contraband from Erode to Kottakkal, has been revealed and on this premise, he got arrayed as 5[th] accused. Subsequently on detailed investigation, it has been revealed that there were consistent calls between the petitioner and other accused from a mobile phone of the petitioner, where the SIM was that of his uncle. Uncle also given statement in this regard. This is thebase on which prosecution alleges conspiracy in the matter of transport and possession of contraband in this crime and involvement of the 5[th] accused also in this crime. On perusal of the prosecution records also, the allegation as against the 5[th] accused is _prima facie_ made out and in such a case, 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;_ B.A.No.1025 of 2023 6 - _(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._ 7. 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. 8. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, _**Union of**_ B.A.No.1025 of 2023 7 - _**India v. Shiv Shankar Kesari**_ and held that the expression ‘rea sonable 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 reason able belief contemplated in turn points to existence of such facts - and circumstances as are sufficient in themselves to justify record ing of satisfaction that the accused is not guilty of the offence charged. 9. 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 ac quittal and recording a finding of not guilty. B.A.No.1025 of 2023 8 10. While considering the rider under Section 37 of the - NDPS Act, the same principles have been reiterated, in the deci sions 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], _**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. Ra jesh**_ [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: B.A.No.1025 of 2023 9 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on . this point is [2023 CriLJ 799], _**Union of India v. Jitentra Giri**_ 11. 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 committed the offences under Section 19 or Section 24 or - Section 27A and also for the offences involving commercial quan tity 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 in gredients. 12. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that - there are reasonable grounds for believing that the petitioner is in B.A.No.1025 of 2023 10 - nocent and he will not commit any offence while on bail. There fore, application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.1025 of 2023 11 ## **APPENDIX OF BAIL APPL. 1025/2023** PETITIONER'S ANNEXURES Annexure1 TRUE COPY OF THE ORDER IN CRL.M.P.NO.1669/2022 OF THE SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI DATED 16.11.2022