State of Kerala v Muhammed Musthafa Palakkal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **Crl.MC.No.3379 OF 2020(B)** **AGAINST THE ORDER/JUDGMENT IN CRMC 56/2020 DATED 16-04-2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI** **CRIME NO.12/2020 OF Nilambur Excise Range Office , Malappuram** ## **PETITIONER/S/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, NILAMBUR.** **BY ADV. PUBLIC PROSECUTOR** ## **RESPONDENT/S/PETIIONER/ACCUSED NO.2:** **MUHAMMED MUSTHAFA PALAKKAL, S/O. IBRAHIM, PALAKKAL HOUSE, KARUPPINPADI, IRINGAVOOR P.O., MALAPPURAM DISTRICT, PIN-676 103.** **R1 BY ADV. SRI.CHERIAN MATHEW POOTHICOTE SMT.SREEJA .V, PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3379 OF 2020(B)** **2** ## **O R D E R** This Crl.M.C. has been filed by the State of Kerala represented by the Excise Inspector, Excise Range Office, Nilambur, challenging Annexure-A1 order dated 16.04.2020 passed by the court below in CMP No.56 of 2020, granting bail to the respondent herein, who is the accused in Crime No.12 of 2020 of Nilambur Excise Range, registered for the offences punishable under Sections 22(c), 20(b)(ii)(A), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”). 2. The prosecution allegation is that on 19.02.2020 at about 1.20 p.m., the respondent and the other **3** ## **Crl.MC.No.3379 OF 2020(B)** accused were found transporting 56.64 gm of ganja, 490 mg of LSD, 4.122 gm of MDMA crystal and 21.22 gm of MDMA pills in a motor cycle bearing registration No. KL-54-D-5787, in contravention of the provisions of the NDPS Act. The respondent herein and the other accused were arrested from the spot. The respondent herein filed Bail Application before the court below under Section 439 Cr.P.C., which was allowed by the court below as per Annexure-A1 order. 3. Heard both sides. 4. It appears from paragraph 5 of Annexure-A1 order that the learned Public Prosecutor opposed the application. However, the court below, without considering that aspect, passed Annexure-A1 order. **4** ## **Crl.MC.No.3379 OF 2020(B)** 5. The offences alleged against the respondent and the other accused include the offence under Section 22(c) of the NDPS Act as well. Section 22(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. At this juncture, it is profitable to refer to 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)- **Crl.MC.No.3379 OF 2020(B)** **5** (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 **6** ## **Crl.MC.No.3379 OF 2020(B)** Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail”. 6. 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 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 Subclause (ii) of Clause (b) of Sub-Section(1) of **7** **Crl.MC.No.3379 OF 2020(B)** 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 the Public Prosecutor. 7. The Hon'ble Supreme Court in State of Kerala Etc v. Rajesh Etc [2020 (1) KHC 557] referred to the **Crl.MC.No.3379 OF 2020(B)** **8** provisions of Section 37 of the NDPS Act and held that 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 before granting bail to any person accused of commission of the offence under the NDPS Act involving commercial quantity. In this case, the learned Magistrate failed to record any convincing reason for granting bail to the respondent herein, who was accused of having committed the offence under the NDPS Act involving commercial quantity. The only reason stated by the court below for granting bail to the respondent was that the respondent was aged 21 years. However, that reason cannot be said to be a reason justifying the granting of bail to the respondent. In **9** **Crl.MC.No.3379 OF 2020(B)** fact, the learned Magistrate failed to record the finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to any person accused of having committed the offence under the NDPS Act involving commercial quantity. Since no reason was stated by the court below as mandated under Section 37 of the NDPS Act before granting bail to the respondent, Annexure-A1 order cannot be sustained. In view of the above, Annexure-A1 order granting bail to the respondent is hereby set aside. The respondent is directed to surrender before the court below immediately. If the respondent fails to surrender before the court below immediately, he is directed to be taken into custody forthwith. The Crl.M.C. stands allowed as above. **Sd/B.SUDHEENDRA KUMAR** **JUDGE** RK/04.11.2020 **Crl.MC.No.3379 OF 2020(B)** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE ORDER DATED 16.4.2020 IN CRIMINAL MISCELLANEOUS CASE NO.56/2020 IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II, MANJERI (IN CHARGE OF SPECIAL JUDGE, NDPS ACT).** ## **RESPONDENT'S/S EXHIBITS:NIL**