Shiju @ Shiji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** **Bail Appl..No. 3226 of 2018** **CRIME NO. 766/2017 OF VALAPPAD POLICE STATION, THRISSUR** ## **PETITIONER/4TH ACCUSED:** **SHIJU @ SHIJI, AGED 41 YEARS, S/O.RAGHAVAN, KONIPPATT HOUSE, NEAR PERINCHAMKUDI KAPELA, VADEL P.O., MURIKKASSERY, IDUKKI DISTRICT.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **OTHER PRESENT:** **SRI AMJAD ALI SR. PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA:3226/18 2 ## **ORDER** The applicant herein is the 4[th] accused in Crime No.766 of 2017 registered at the Valappad Police Station under Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985. After completion of investigation, the final report report has been laid before the Court of Session, Thrissur, on 31.7.2017. 2. The alleged detection was on 27.5.2017 and it was by the Station House Officer, Valappad Police Station. Secret information was received by the detecting officer about the storage for the purpose of sale of contraband substance in a car bearing Reg.No. KL-24/E-1406 and a pick-up van bearing Reg.No.KL-09/M-2430 which were parked at Kothakulam Beach. After complying with all the formalities, the vehicles were intercepted and search was conducted. Accused Nos. 1 and 2 were found inside the car and search of the vehicles resulted in the seizure of 25.790 kg of Ganja from the dickey of the car. Thereafter, the pick-up van in which the accused were travelling was searched. From a secret compartment in the cabin Platform, 42.730 kgs. of Ganja was seized. The contraband articles were sealed and labelled in accordance with the procedure prescribed and the accused were arrested. Investigation BA:3226/18 3 was conducted by the Circle Inspector of Police and on its completion, final report was laid on 31.7.2017 before the Court of Session, Thrissur. 3. The learned counsel appearing for the applicant would contend that the applicant is innocent of the allegations. It is submitted that the applicant had approached this Court earlier and by Annexure-A order, his prayer was rejected. Having regard to the long period of incarceration undergone by him, he be released on bail is the prayer. 4. The learned Public Prosecutor has strenuously opposed the prayer. It is submitted that 42.730 kgs. of Ganja were seized from the car in which the accused Nos.3 and 4 were travelling. It is further submitted that the parameters laid down in Section 37 of the NDPS Act, 1985 will have to be satisfied as the quantity seized is commercial in nature. Highlighting the deleterious effects and deadly impact of the substance seized from the possession of the applicant herein, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by traffickers such as the applicant. BA:3226/18 4 5. I have considered the submissions advanced and have perused the materials on record. 6. While dismissing the earlier application filed by the applicant, this Court had taken note of the statutory mandate circumscribed by Section 37 of the NDPS Act. It is by now settled that the limitations on granting of bail specified in clause (b) of subsection (1) of Section 37 of the Act 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. Bail can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The expression used in Section 37(1)(b)(ii) is “reasonable grounds” which 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. The court has also to record a finding that while on bail the accused is not likely to commit any BA:3226/18 5 offence and there should also exist some materials to come to such conclusion. 7. The main contention raised by the accused is concerning the delay in concluding the trial. According to the learned counsel, the delay in concluding the proceedings would violate the fundamental right of the applicant to have a speedy trial. 8. I am not impressed with the contention of the learned counsel that his rights are violated. The applicant was found in possession of narcotic drugs and other substances, the possession of which is banned under law. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such office and that he is not likely to commit any offence while on bail are satisfied. The applicant has no case that there are reasonable grounds for holding that he is not guilty of such offence. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** [AIR 2002 (SC) 1475], while liberty of an individual is precious and there should always be an all round effort BA:3226/18 6 on the part of courts to protect such liberties of individuals, but this protection can be made available to the deserving ones only. Protection cannot be termed to be absolute but stand qualified depending upon the exigencies of the situation. 9. While considering an application for bail, this Court has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence viz, the presumption of innocence of an accused till he is found guilty. The excessive and unregulated use of drugs has emerged as a major social problem and has crossed the border of caste, class, creed, sex and the nation. It is like a curse for developing country like India which has burdening problems like poverty, unemployment and overpopulation. Drug abuse affects individuals, their families and the society as a whole. It is a proven fact that drug abuse affects the law and order, economic production and human welfare. The spread and entrenchment of drug abuse needs to be prevented, as the cost to the people, environment and economy is colossal. The Narcotic Drugs and Psychotropic BA:3226/18 7 Substances Act, 1985, was enacted with stringent provisions to curb this menace. The Act envisages a minimum term of 10 years imprisonment extendable to 20 years and fine of Rs. 1 lakh extendable up to Rs. 2 lakhs for the offenders. It is for this purpose that the Parliament has provided that in the event of the Prosecutor opposing the application, unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the accused cannot be enlarged on bail. This is the mandate under Section 37 of the Act and the same has to be complied with. 10. In the facts and circumstances, the contentions now advanced cannot be a reason to grant bail to the applicant. There are no substantial probable causes for believing that the accused is not guilty of the offence charged. It would not be possible to conclude that he is not likely to commit any offence while on bail. The applicant has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. 11. I direct the court below to take note of the fact that the applicant is an under trial prisoner and take all earnest efforts to BA:3226/18 8 expedite the trial. It is made clear that expression of any opinion above shall not be treated as an expression on merits of the case. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE