State of Kerala v Anwar Sadath

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2020-11-06
Court Decision / Holding: In the result, CRL.M.C. is allowed and Annexure C order granting bail to the respondent is set aside. Since the respondent has not yet been released on bail, no further directions are required.
Final Disposition: CRL.M.C. allowed; Annexure C bail order set aside; no further directions since bail not yet executed.

Parties to the Case

Appellants / Petitioners

State of Kerala represented by Assistant Excise Commissioner, Excise Intelligence and Investigation Bureau South Zone, Thiruvananthapuram

Respondents

Anwar Sadath

Legal Representation & Advocates

Counsels for Petitioners

• Director General of Prosecution

Counsels for Respondents

• C. Harikumar
• S. M. Thomas
• Renjith Rajappan
• Anand Gokuldas

Case Synopsis & Summary

This is a Criminal Miscellaneous Case (Crl.M.C. No.4015 of 2020) filed by the State of Kerala challenging an Annexure C bail order passed in SC 1701/2019 in Crime No.6/2019 of the Excise Circle, Thiruvananthapuram. The accused Anwar Sadath and other co-accused were alleged to possess 11.210 kg of hashish oil and 2.530 kg of ganja for sale, under sections 20(b)(ii)(C), 20(b)(ii)(B) and 29 read with section 8(c) of the NDPS Act, 1985. NDPS offences involving commercial quantity are cognizable and non-bailable, and Section 37 mandates that, where the Public Prosecutor opposes bail, the court must be satisfied of two twin conditions before granting bail: (i) reasonable grounds to believe the accused is not guilty, and (ii) the accused is not likely to commit any offence while on bail. The State argued that Annexure C did not provide the Public Prosecutor an opportunity to oppose the bail and failed to record the Section 37 findings, rendering the order unsustainable. The court cites State of Kerala v. Rajesh (2020 (1) KHC 557) to emphasize these twin conditions. The High Court allowed the Crl.M.C., set aside Annexure C, and held that no further direction was required since bail had not yet been executed."

Provisions of Law Cited

NDPS Act, 1985 - Section 37(1)(b)NDPS Act, 1985 - Section 37(2)NDPS Act, 1985 - Section 20(b)(ii)(C)NDPS Act, 1985 - Section 20(b)(ii)(B)NDPS Act, 1985 - Section 29NDPS Act, 1985 - Section 8(c)CrPC, 1973

Legal Doctrines & Maxims

Cognizable and non-bailable offences under the NDPS Act
Sine-qua-non for granting bail
Twin conditions for bail under Section 37(1)(b)(ii)

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that NDPS Act offences involving a commercial quantity are cognizable and non-bailable. Section 37 requires that, when the Public Prosecutor opposes bail, the court must ensure prejudice is safeguarded by granting bail only if two twin conditions are satisfied: (i) there are reasonable grounds to believe the accused is not guilty, and (ii) the accused is unlikely to commit any offence while on bail. Annexure C did not permit opposition or state any Section 37 findings, thus the order is unsustainable. The State relies on the principle laid down in State of Kerala v. Rajesh (2020) to require strict adherence to Section 37 procedures before granting bail in commercial NDPS cases.

Contentions of Respondents

The judgment record does not provide a detailed account of the respondents’ written arguments; the order’s rationale centers on procedural compliance with Section 37 and the absence of an opportunity for the Public Prosecutor to oppose bail, rather than on new factual submissions from the defense.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala Etc v. Rajesh Etc	2020 (1) KHC 557	Positive	Cited to reaffirm that the twin conditions under Section 37(1)(b)(ii) must be satisfied before granting bail in NDPS cases involving commercial quantity; the decision is used as a controlling principle in the present bail-order challenge.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **Crl.MC.No.4015 OF 2020(B)** **AGAINST THE ORDER/JUDGMENT IN SC 1701/2019 DATED 08-09-2020 OF II ADDITIONAL DISTRICT COURT,TRIVANDRUM** **CRIME NO.6/2019 OF Trivandrum Excise Circle Office , Thiruvananthapuram** ## **PETITIONER/RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE ASSISTANT EXCISE COMMISSIONER, EXCISE INTELLIGENCE AND INVESTIGATION BUREAU SOUTH ZONE, THIRUVANANTHAPURAM.** ## **BY ADV. DIRECTOR GENERAL OF PROSECUTION** ## **RESPONDENT/ACCUSED/PETITIONER:** **ANWAR SADATH, AGED 31 YEARS, S/O. ALI, CHERUTHADATHIL HOUSE, VAZHAKALA, KAKKANAD, ERNAKULAM DISTRICT-682021.** **R1 BY ADV. SRI.C.HARIKUMAR R1 BY ADV. SRI.SAM M.THOMAS R1 BY ADV. SRI.RENJITH RAJAPPAN R1 BY ADV. SHRI.ANAND GOKULDAS** ## **SMT.V.SREEJA,PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-2-** **CRL.M.C.No.4015 OF 2020** ## **O R D E R** The State of Kerala, represented by the Assistant Excise Commissioner, Excise Intelligence and Investigation Bureau, Thiruvananthapuram, has filed this Crl.M.C. challenging Annexure C order passed by the court below granting bail to the second accused, who is the respondent herein, in crime No.6/2019 of Excise Circle, Thiruvananthapuram, registered for the offences punishable under Sections 20(b)(ii)(C), 20(b)(ii)(B) and 29 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) 2. Heard both sides. 3. The prosecution allegation is that on 24.05.2019 at about 11.30 a.m., the respondent herein and the other accused were found in possession of 11.210 kg of hashish **-3-** ## **CRL.M.C.No.4015 OF 2020** oil and 2.530 kg of ganja for the purpose of sale, in contravention of the provisions of the NDPS Act. 4. The offences alleged against the petitioner and the other accused include the offence under Section 20(b) (ii)(C) of the NDPS Act as well. Section 20(b)(ii)(C) of the NDPS Act is an offence involving commercial quantity. The jurisdiction of the court to grant bail to a person accused of having committed the offence under the NDPS Act involving commercial quantity is circumscribed by the provisions of Section 37 of the NDPS Act, which is extracted hereunder: **“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) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving **-4-** **CRL.M.C.No.4015 OF 2020** 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”. 5. It is clear from the provision of Section 37 of the NDPS Act that the offences under the NDPS Act are cognizable and non-bailable. It appears from the provisions of Section 37 of the NDPS Act that in an accusation of having committed an offence involving commercial quantity, it is the mandate that the Public **-5-** **CRL.M.C.No.4015 OF 2020** Prosecutor must be granted an opportunity to oppose the application before the release of the accused on bail. If the Public Prosecutor opposes the application, in order to enlarge on bail of any person accused of having committed the offence involving commercial quantity, the twin conditions mentioned in Sub-clause (ii) of Clause (b) of Sub-Section (1) of Section 37 of the NDPS Act are to be satisfied. The first condition is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. The Court must also be satisfied that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban for granting bail operates. That means, if and only if, the twin conditions are satisfied, then only the bail can be granted to any person accused of having committed the offence under the NDPS Act involving commercial quantity, if the bail application is opposed by **-6-** **CRL.M.C.No.4015 OF 2020** the Public Prosecutor. 6. The Hon'ble Supreme Court in State of Kerala Etc v. Rajesh Etc [2020 (1) KHC 557] referred to the provisions of Section 37 of the NDPS Act and held that the twin conditions mentioned in Clause (b) of Sub-Section(1) of Section 37 of the NDPS Act are to be satisfied before granting bail to any person accused of commission of the offence under the NDPS Act involving commercial quantity. 7. In this case, the learned Public Prosecutor has submitted that the Special Public Prosecutor was not granted an opportunity to oppose the application before passing Annexure C order. It is the mandate of the provisions of Section 37 of the NDPS Act that before granting bail to any person accused of having committed the offence under the NDPS Act involving commercial quantity, the Public Prosecutor must be granted an opportunity to oppose the application. Therefore, on that **-7-** ## **CRL.M.C.No.4015 OF 2020** reason alone, Annexure C order cannot be sustained. It further appears that no reason was stated by the court below for granting bail to the respondent herein as per order in CMP No.1001/2020 dated 08.09.2020 in S.C.No.1701/2019. The learned Special Judge also failed to record any finding mandated under Section 37 of the NDPS Act, which is _sine-qua-non_ for granting bail to the accused in a case registered under the NDPS Act involving commercial quantity. In view of the above, Annexure-C order granting bail to the respondent herein cannot be sustained. In the result, this Crl.M.C. stands allowed and Annexure C order granting bail to the respondent herein stands set aside. Since the respondent herein is not yet released on bail, no further direction is required. ## **Sd/B.SUDHEENDRA KUMAR JUDGE** **Nkr/06.11.2020** **-8-** ## **CRL.M.C.No.4015 OF 2020** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A**|**A TRUE COPY OF THE ORDER DATED**| |---|---| ||**26/08/2019 IN BA NO. 6100/2019 OF THIS**| ||**HONOURABLE COURT.**| |**ANNEXURE B**|**A TRUE COPY OF THE ORDER DATED**| ||**04/03/2020 IN BA NO.9514/2019 OF THIS**| ||**HONOURABLE COURT.**| |**ANNEXURE C**|**A TRUE COPY OF THE ORDER DATED**| ||**08/09/2020 IN CRL. MP NO.1001/2020 IN SC**| ||**NO.1701/2019 OF THE ADDITIONAL SESSIONS**| ||**JUDGE-II, THIRUVANANTHAPURAM IN CRIME**| ||**NO.6/2019 OF EXCISE CIRCLE OFFICE,**| ||**THIRUVANANTHAPURAM.**|