# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`**
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THE HONOURABLE MR.JUSTICE C.S.DIAS
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MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946
BAIL APPL. NO. 3139 OF 2024
CRIME NO.28/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC
SPECIAL SQUAD, THIRUVANANTHAPURAM, Thiruvananthapuram
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## **`PETITIONER/FIRST ACCUSED:`**
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SREEJITH S.,
AGED 31 YEARS
S/O. SANKARANKUTTY NAIR, TRA-24, TC-1/2043,
THAMARABHAGAM, KUMATAPURAM, MEDICAL COLLEGE,
THRIVANANTHAPURAM, PIN - 695011
BY ADVS.
A.RAJASIMHAN
VYKHARI.K.U
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## **`RESPONDENT/STATE:`**
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STATE OF KERALA,
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REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
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## **`OTHER PRESENT:`**
## **`SR PP SRI C S HRITHWIK`**
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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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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 first accused in Crime.No.28/2023 of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 8(C), 22(c), 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 10.10.2023.
2. The essence of the prosecution case is that: on 10.10.2023, at around 12.15 hours, the detecting officer found the first accused in possession of 61.5 grams of methamphetamine, the second accused in possession of 32.8 grams of methamphetamine, and the 15.2 grams of
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methamphetamine stored in a scooter bearing registration No. KL 01 CB 7745. Accordingly, a total quantity of 109.5 grams of methamphetamine was seized from the accused. Thus, the accused have committed the above offences.
3. Heard; Sri.Rajasimhan. A, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. There are no incriminating materials to substantiate the petitioner’s involvement in the case. A reading of Annexure A1 occurrence report would show that the contraband that was allegedly seized from the petitioner is just above the commercial quantity. In any given case, the petitioner has been in judicial custody since 10.10.2023, the investigation in the case is practically complete, and the final report has been laid.
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Therefore, the petitioner's further detention is unnecessary. Moreover, in the bail objection report, it can be gathered that the contraband was weighed along with its cover. Hence, the contraband is not of a commercial quantity. Hence, the application may be allowed.
5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that 61.5 grams of methamphetamine were seized from the conscious possession of the petitioner. In addition to the same, 32.8 grams of methamphetamine were seized from the second accused, and 15.2 grams of methamphetamine were seized from a scooter. Therefore, the total quantity involved in the case is 109.5 of grams methamphetamine. Furthermore, the offences under Sections 27A and 29 of the Act are also incorporated, and the rigour under Section 37 of the Act applies to the
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facts and circumstances of the case. Hence, the application may be dismissed.
6. On an evaluation of the materials placed on record, it can be seen that the prosecution allegation against the petitioner is that he was found in conscious possession of 61.5 grams of methamphetamine. Subsequently, 32.8 grams of methamphetamine were seized from the second accused, and 15.2 grams of methamphetamine were seized from the scooter of the accused. Therefore, the total quantity involved in the case is allegedly 109.5 grams of methamphetamine. Indisputably, as per the specifications under the Act, the contraband falls under the category of commercial quantity. The trump card of the learned counsel for the petitioner is that the contraband seized from the petitioner is just above the commercial quantity, and the contraband is weighed with the cover. The specification under the Act specifically stipulates that if the
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contraband is 50 grams of methamphetamine, the same would fall within the category of commercial quantity. The Act does not state that the rigour under Section 37 will not apply if the contraband is just above the commercial quantity. Moreover, the contention that the contraband was weighed with the cover is a matter to be decided after trial.
7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant 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
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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 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**
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## **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”.
## 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 drugtrafficking 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
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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 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”.
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13. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity, and nature of the accusations leveled against the petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband involved in the case, I am of the view that there are no reasonable grounds to hold that the petitioner is not guilty of the offences 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 ground to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and is only to be rejected.
## Resultantly, the application is dismissed.
Sd/-
## **C.S.DIAS,JUDGE**
mtk/03.06.24
