Sibi Joy 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 FEBRUARY 2023 / 2ND PHALGUNA, 1944 BAIL APPL. NO. 733 OF 2023** **CRIME NO.41 OF 2022 OF EXCISE RANGE OFFICE VARAPPUZHA** ## **PETITIONER/ACCUSED NO.1:** **SIBI JOY, AGED 24 YEARS S/O JOY, KALAPPURAKKAL HOUSE, THAIMURI BHAGAM, CHITTOOR P.O, EDAYAKUNNAM, CHERANALLOOR, ERNAKULAM DISTRICT., PIN - 682027** **BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA SRINATH C.V.** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 EXCISE INSPECTOR EXCISE RANGE OFFICE, VARAPPUZHA, ERNAKULAM DISTRICT, PIN - 683517** ## **OTHER PRESENT:** ## **SR PP SMT T V NEEMA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 733 OF 2023** 2 ## **A. BADHARUDEEN, J.** **-------------------------------------------------** ## **B.A.No.733 of 2023** **-------------------------------------------------** Dated this the 21[st] day of February, 2023 ## **O R D E R** This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the petitioner/first accused in Crime No.41 of 2022 of Varappuzha Excise Range, when the accused alleged to have committed offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. I have perused the Case Diary materials and report of the investigating officer produced by the learned Public Prosecutor. 4. The prosecution allegation is that, at about 07.45 p.m., on 19.10.2022, the Varappuzha Excise **BAIL APPL. NO. 733 OF 2023** 3 Inspector and party detected 25 gram of MDMA from the possession of the petitioner. Accordingly, crime was registered alleging commission of offences punishable under Sections 22(c) and 29 of the NDPS Act. One Sainul Abid got arrayed as the second accused, who alleged to have given contraband to the possession of the petitioner for sale. 5. While pressing for grant of regular bail to the petitioner, who alleged to have committed offence punishable under Sections 22(c) and 29 of the NDPS Act involving commercial quantity, the learned counsel for the petitioner highlighted his custody from 19.10.2022 onwards and the progress of investigation. 6. Whereas, the learned Public Prosecutor strongly opposed the contentions raised by the learned counsel for the petitioner and pointed out the involvement of the accused in two more NDPS Act cases. The following are the crimes where the involvement of the **BAIL APPL. NO. 733 OF 2023** 4 petitioner have been highlighted by the learned Public Prosecutor. - “1) Crime No.45/2019 dated 01.08.2019 of Excise Range Office, Kollamkodu, u/s. 20(b)(ii)B of NDPS Act, 1985. (Thondy 2 kg ganja) - 2) Crime No.16/2022 of Infopark Police Station u/s.22(b) of NDPS Act, 1985. (Thondy 2 gm MDMA)” 7. The petitioner herein alleged to have committed the offences punishable under Sections 22(c) and 29 of the NDPS Act and this is the 3[rd] crime registered against the petitioner under the NDPS Act. Therefore the continuous involvement of the petitioner in multiple crimes under the NDPS Act itself is a reason to deny bail to him. 8. That apart, 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.--_ **BAIL APPL. NO. 733 OF 2023** 5 _(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) 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)_ **BAIL APPL. NO. 733 OF 2023** 6 _or any other law for the time being in force on granting of bail._ 9. 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. 10. 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 **BAIL APPL. NO. 733 OF 2023** 7 and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 11. 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 acquittal and recording a finding of not guilty. 12. 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 **BAIL APPL. NO. 733 OF 2023** 8 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. Rajesh** [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848] Latest decision on this point is one reported in **Union of India v. Jitendra Giri** [2023 Cr.L.J 799] **BAIL APPL. NO. 733 OF 2023** 9 13. 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 satisfaction of the above twin ingredients. 14. Thus, this Court while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must **BAIL APPL. NO. 733 OF 2023** 10 satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 15. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- **A. BADHARUDEEN, JUDGE** AS **BAIL APPL. NO. 733 OF 2023** 11 ## **APPENDIX OF BAIL APPL. 733/2023** **PETITIONER'S ANNEXURES:** **ANNEXURE 1 TRUE COPY OF THE OCCURRENCE REPORT IN NDPS CRIME NO.41 OF 2022 OF EXCISE RANGE OFFICE VARAPPUZHA ANNEXURE 2 TRUE COPY OF THE SEIZURE MAHAZAR IN NDPS CRIME NO.41 OF 2022 OF EXCISE RANGE OFFICE VARAPPUZHA ANNEXURE 3 TRUE COPY OF THE REMAND REPORT OF THE PETITIONER HEREIN IN NDPS CRIME NO.41 OF 2022 OF EXCISE RANGE OFFICE VARAPPUZHA**