Shifna N.K v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023/19TH MAGHA, 1944** **BAIL APPL. NO.9568 OF 2022** **CRIME NO.22/2022 OF NILAMBUR EXCISE RANGE OFFICE, MALAPPURAM AGAINST THE ORDER/JUDGMENTCRMP 1298/2022 OF FAST TRACK SPECIAL COURT,MANJERI CRMP 1452/2022 OF FAST TRACK SPECIAL COURT,MANJERI** ## **PETITIONER/ACCUSED NO.2:** SHIFNA N.K, AGED 26 YEARS, D/O.FIROZ, NEDUNGUNDAN HOUSE, PULATH, KARAKKUNU, MALAPPURAM DISTRICT, PIN – 676123. BY ADVS. SUSMITH KUMAR T.D T.O.DEEPA(K/180/2008) C.SIVADAS(K/798/2012) ## **RESPONDENT/STATE/DEFACTO COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 EXCISE CIRCLE INSPECTOR, EXCISE RANGE OFFICE, VALIYAMTHODU, NILAMBUR, MALAPPURAM, PIN – 679329. BY ADV. SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON 08.02.2023, DELIVERED THE FOLLOWING: **B.A. No.9568 of 2022** 2 ## **O R D E R** ## **Dated, this the 8[th] February, 2023** This is a petition 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. 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 ## **B.A. No.9568 of 2022** 3 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 2[nd] 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 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 ## **B.A. No.9568 of 2022** 4 the petitioner/2[nd] 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 2[nd] accused and the other persons, are closely related to 1[st] and 2[nd] 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 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 ## **B.A. No.9568 of 2022** 5 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 Criminal Procedure, 1973 (2 of 1974),--_ _(a) every offence punishable under this Act shall be cognizable;_ **B.A. No.9568 of 2022** 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 7 ## **B.A. No.9568 of 2022** 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 limited purpose essentially confined to the ## **B.A. No.9568 of 2022** 8 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: ## **B.A. No.9568 of 2022** 9 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] 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 ## **B.A. No.9568 of 2022** 10 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. 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 ## **B.A. No.9568 of 2022** 11 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. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 12 ## **B.A. No.9568 of 2022** ## **APPENDIX OF BAIL APPL.9568/2022** PETITIONER'S ANNEXURES: ANNEXURE A1 THE FREE COPY OF THE ORDER DATED 17.09.2022 IN CRL.M.P. NO.1298 OF 2022 ON THE SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI. ANNEXURE A2 THE FREE COPY OF THE ORDER DATED 13.10.2022 IN CRL.M.P. NO.1452 OF 2022 ON THE SPECIAL COURT FOR SC/ST ( POA) ACT & NDPS ACT CASES, MANJERI. ANNEXURE A3 A TRUE COPY OF THE UNDATED MEDICAL CERTIFICATE ISSUED FROM RAJAGIRI HOSPITAL, EDAVANNA, MALAPPURAM. ANNEXURE A4 A TRUE COPY OF THE SEIZURE MAHAZAR DATED 11/09/2022 PREPARED BY THE EXCISE RANGE INSPECTOR, EXCISE RANGE OFFICE, NILAMBUR. ANNEXURE A5 A TRUE COPY OF CERTIFICATE OF CHEMICAL ANALYSIS NO.5416/2022/KKD OF THE YEAR 2022 DATED 31/10/2022 ISSUED BY ASSISTANT CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE.