Shifna N.K. v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 ``` ## _`BAIL APPL. NO. 6524 OF 2023`_ ``` CRIME NO.22/2022 OF Nilambur Excise Range Office, Malappuram AGAINST THE ORDER/JUDGMENT Bail Appl. 9568/2022 OF HIGH COURT OF KERALA ``` ## _`PETITIONER/S:`_ ``` SHIFNA N.K. AGED 24 YEARS D/O FIROZ, NEDUNGUNDAN HOUSE PULATH, KARAKUNNU, MALAPPURAM., PIN - 676123 BY ADVS. C.Y.VINOD KUMAR C.ANILKUMAR (KALLESSERIL) P.M.MANASH AADIL NAZARUDEEN DILSHANA SHABANU ``` ## _`RESPONDENT/S:`_ ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2EXCISE INSPECTOR NILAMBUR EXCISE RANGE OFFICE, MALAPPURAM DISTRICT, PIN - 679329 ``` ## _`OTHER PRESENT:`_ ``` SR PP K DENNY DEVASSY ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No. 6524 of 2023 ``` ``` ..2.. ``` ## _**O R D E R**_ **Dated this the 30[th] day of October, 2023** This is the second application for bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner, who is the 2[nd] accused in Crime No. 22/2022 of Excise Range Office, Nilambur, where she alleged to have committed offences punishable under Sections 8(c), 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as 'NDPS Act', for short) and the petitioner seeks regular bail. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Earlier, the bail application filed by the petitioner was dismissed as per order in B.A. No. 9568/2022 dated 08.0202023 as under:- _“This is a petition filed under Section 439 of the Code of Criminal Procedure, by the petitioner, who is the 2nd accused in Crime No.22/2022 of Excise Range Office, Nilambur, where_ ``` B.A. No. 6524 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _she alleged to have committed offences punishable under Sections 8(c), 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as 'NDPS Act', for short) and the petitioner seeks regular bail._ _2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor._ _3.The prosecution allegation in this case is that at about 8:45 p.m. on 11.09.2022, when the Excise Range Inspector and party conducted routine examination of vehicles near Excise Check Post, Vazhikkadavu, accused Nos.1 to 4 carried 75.458 grams of MDMA in one Jeep and two motor bikes viz., KL 7Q 4579, TN 65 AD 6976 and KL 71E 6911. Accordingly, accused Nos.1 and 4 were nabbed and the contraband taken into custody and crime was registered alleging commission of the above offences._ _4. While canvassing regular bail to the 2nd accused, where commercial quantity of 75.458 gram of MDMA, jointly possessed by the accused, got recovered, it is submitted by the learned counsel for the petitioner that the prosecution_ ``` B.A. No. 6524 of 2023 ``` ``` ..4.. ``` _allegation as to possession of MDMA is absolutely false and as per the chemical analysis report, it was found that the contraband was not MDMA, but Methamphetamine. Therefore, the prosecution allegation as to possession of MDMA, is false. He also pointed out that even otherwise the contraband alleged to be taken by the excise party though would come to_ _75.458 gram, when the same is individually taken, the contraband seized from the petitioner/2nd accused is only 6.40 gram. Therefore, the petitioner did not possess commercial quantity of contraband individually. As such, the petitioner, who has been in custody from 11.09.2022, may be released on bail._ _5. Whereas, the learned Public Prosecutor zealously opposed bail and submitted that the 1 st accused is the husband of the 2nd accused and the other persons, are closely related to 1st and 2nd accused, jointly transported the contraband and the excise party altogether collected 75.458 gram. She also submitted that though the chemical analysis report suggests the same as Methamphetamine instead of_ ``` B.A. No. 6524 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _Methylenedioxymethamphetamine (MDMA). Further, it is submitted that 50 gram of Methaphetamine alone also is commercial quantity and, therefore, the contention raised by the learned counsel for the petitioner to hold that commercial quantity of MDMA not recovered cannot be countenanced. The difference between Methylenedioxymethamphetamine (MDMA) and Methaphetamine is a matter of evidence to be given by the scientific experts. Any how, both items were prohibited under the NDPS Act. Since the contraband found to be Methaphetamine and 50 gram of Methaphetamine is commercial quantity, this Court cannot grant bail without satisfying the twin conditions provided under Section 37 of the NDPS Act._ _6. Hence, 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_ ``` B.A. No. 6524 of 2023 ``` ``` ..6.. ``` _Criminal Procedure, 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 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_ ``` B.A. No. 6524 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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 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._ _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_ ``` B.A. No. 6524 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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._ _10. 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], 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_ ``` B.A. No. 6524 of 2023 ``` ``` ..9.. ``` _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]_ _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 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_ ``` B.A. No. 6524 of 2023 ``` ``` ..10.. ``` _satisfaction of the above twin ingredients._ _12. In the case at hand, the prosecution allegation is that accused Nos.1 to 4 jointly possessed 75.458 gram of MDMA, found to be Methaphetamine and the prosecution records do justify the said allegation prima facie. Therefore, the argument advanced by the learned counsel for the petitioner to treat the contraband as intermediate quantity cannot be justified. As such, the contraband involved in this case is commercial quantity and the rider under Section 37 of the NDPS Act, would squarely apply._ _In fact, this Court cannot hold that the petitioner did not commit the offence alleged prima facie and she will not commit any offence in future, if she will be released on bail. Therefore, this bail application fails and is accordingly dismissed.”_ This second application has been filed on the submission that trial could not be completed within a period of six months and the petitioner who has no criminal antecedents and has been in ``` B.A. No. 6524 of 2023 ``` ``` ..11.. ``` custody from 11.09.2022 deserves bail following the ratio in _**Fasil v. State of Kerala**_ [2023 (3) KHC 212], where this court ## held as under:- _“10. Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act:_ _(1) the accused should not have any criminal antecedents._ _(2) the accused has been in custody for a pretty long time, at least more than one year, (say for eg. two years and 15 days in the instant case)._ _(3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months)._ _Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”_ 4. In view of the submission, a report from the Additional Special Court was called for and it is submitted as under:- ``` B.A. No. 6524 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _“It is submitted that PW1 to PW11 were examined and Ext.P1 to Ext.P58 and MO1 to MO10 were marked in the case. Investigation Officer was examined on 20.10.2023, in part, as PW12 also. However, learned counsel for A2 reported that his grandfather expired on 19.10.2023 and learned counsel for A4 wanted adjournment on the ground that he had to take his mother to hospital. Therefore, PW12 was bound over for cross-examination by A2 and A4 to 25.10.2023. It is reported by Public Prosecutor that there is no further witness to be examined, apart from completion of examination of PW12.”_ Thus, it appears that, in this case, trial is about to finish without much delay and therefore, the ratio in _**Fasils case c** (Supra)_ ould not be applied in this case, though it has been argued by the learned counsel for the petitioner that the petitioner ``` B.A. No. 6524 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** deserves bail following the ratios in _**Fasils Case**_ (Supra). Therefore, this bail application stands dismissed, with direction to the special Judge to expedite the trial. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```