Shiju S v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 1551 OF 2024 ``` ``` CRIME NO.1766/2023 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM ``` ## `PETITIONER:` ``` SHIJU S, AGED 47 YEARS S/O SHAHUL HAMEED,BSH VILLA, PERUMKULAM P.O., ALAMKODE, THIRUVANANTHAPURAM, PIN – 695102 ``` ``` BY ADVS.C.R.SIVAKUMAR S.SOORYA GAYATHRY BINI KRISHNA SUBHAJA P. HARI R. ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1551/2024_ _-:2:-_ _Dated this the 3[rd] day of June, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fifth accused in Crime No.1766/2023 of the Attingal Police Station, Thiruvananthapuram, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 30.07.2023. 2. The crux of the prosecution case is that: on 30.07.2023, at around 04 hours, the accused Nos.1 to 5 were found travelling and transporting 89.70 grams of MDMA in a car bearing Reg. No.DL-4-CNE-365 for the purpose of sale. The car was intercepted, and the _B.A.No.1551/2024_ ## _-:3:-_ contraband was seized from the car. The investigation has revealed that accused Nos.6 to 8 are also involved in the crime. Thus, the accused have committed the above offences. 3. Heard; Sri.C.R. Sivakumar, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the case. The petitioner was only travelling in the car from which the contraband was seized. The petitioner has been in judicial custody since 30.07.2023, the investigation in the case is complete, and the final report has been laid. The learned counsel relied on the decision of this Court in _B.A.No.1551/2024_ _-:4:-_ **Suresh Kumar v. State of Kerala** [2023 LiveLaw (Ker)56] to fortify his submission. Hence, he prayed that the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner was travelling along with accused Nos.1 to 4 in the car from which the contraband was seized. It was on the said basis that the Investigating Officer has incorporated Section 29 of the Act. Since the contraband involved in the case is a commercial quantity, the rigour under Section 37 of the Act applies. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Moreover, the accused Nos.6 to 8 are still at large. The Investigating Officer has already laid the final report in respect of accused Nos.1 to 5 on 20.01.2024. Hence, _B.A.No.1551/2024_ ## _-:5:-_ the application may be dismissed. 6. The prosecution allegation against the petitioner is that the accused Nos.1 to 5 were found travelling in a car from which the contraband of 89.70 grams of MDMA was seized. It is now revealed that, as per the chemical analysis report, the contraband is 'methamphetamine' and not 'MDMA'. Yet, the contraband is of a commercial quantity, in view of the specification under the Act. 7. The bone of contention of the learned counsel for the petitioner is that the contraband was only seized from the first accused. Therefore, the petitioner cannot be held to have been in possession of the contraband. Indisputably, Section 29 of the Act has been incorporated in the crime. 7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant _-:6:-_ ## _B.A.No.1551/2024_ 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 non-** **bailable.** —(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 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 _B.A.No.1551/2024_ _-:7:-_ 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 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”. _B.A.No.1551/2024_ ## _-:8:-_ 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”. 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 _B.A.No.1551/2024_ _-:9:-_ ## 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”. 13. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity, and nature of the accusations alleged against the petitioner, the potential severity of the punishment that can be imposed on him, the _B.A.No.1551/2024_ ## _-:10:-_ commercial quantity of the contraband that is involved in the case and that Section 29 of the Act has been incorporated, I am satisfied that there are no reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out any ground to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/03.06.24 //True copy// P.A. To Judge