Subair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA,** **1945** **BAIL APPL. NO. 9054 OF 2023** **CRIME NO.619/2022 OF Kolathur Police Station,** ## **Malappuram** ## **PETITIONER/1ST ACCUSED:** SUBAIR, AGED 42 YEARS S/O MUHAMMED, KALANGADAN HOUSE, MATTATHUR P.O., PARAPURAM, MALAPPURAM, PIN – 676528. BY ADVS. V.VINAY NISSAM NAZZAR ## **RESPONDENT/STATE:** STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO:619/2022 OF KOLATHUR POLICE STATION, MALAPPURAM DISTRICT) SENIOR PUBLIC PROSECUTOR K DENNY DEVASSY THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.02.2024, THE COURT ON 16.02.2024 DELIVERED THE FOLLOWING: B.A.No.9054/2023 2 ## _**A. BADHARUDEEN, J.**_ _================================ B.A.No.9054 of 2023 ================================ Dated this the 16th day of February, 2024_ ## _**O R D E R**_ This bail application has been filed under Section 439 of the Code of Criminal Procedure. The petitioner is the 1[st] accused in Crime No.619/2022 of Kolathur Police Station, Malappuram, now pending as SC No.90/2023 on the files of the Special Court (Atrocities Against SC/ST), Manjeri. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary and the report placed by the learned Public Prosecutor. 3. The prosecution case is that at about 06.15 p.m on 21.09.2022, the 1[st] accused in this crime was nabbed by the police when he was found in illegal possession of 140 grams of MDMA in the Padapparambu-Perinthalmanna Public Road near AL HILAL Academy, for the purpose of sale. Later enquiry revealed that the B.A.No.9054/2023 3 petitioner herein also involved in this crime and accordingly he was incorporated as the 2[nd] accused in this crime. Thus the prosecution alleges commission of offences punishable under Sections 22(c) & 29 of the Narcotic Drugs and Psychotropics Substances Act (`NDPS’ for short hereinafter) jointly by accused 1 and 2. 4. The learned counsel for the petitioner submitted that the petitioner was falsely implicated in this case and he is innocent. According to him, he has moved Crl.M.C.No.6742/2023 in this crime before this Court to quash the proceedings in this crime and Annexure-IX is the order passed by this Court. 5. Further he submitted that thereafter the allegation of false implication had been investigated, particularly in view of the direction issued by this Court in W.P(Crl) No.996/2023. But all reports are against the petitioner. According to the learned counsel, the petitioner is absolutely innocent and he was implicated without any sufficient materials. He pressed for bail highlighting the custody of the petitioner from 21.09.2022 as a strong reason to B.A.No.9054/2023 4 grant regular bail to the petitioner. 6. However, the learned Public Prosecutor would submit that the petitioner, who is the 1[st] accused in this crime was nabbed red-handedly along with 140 grams of MDMA and thereafter when the involvement of the 2[nd] accused also was brought during investigation, he also was arrayed as accused. It is submitted further that when the 2[nd] accused moved the bail application before this Court by filing B.A.No.628/2023, this Court dismissed the application as per order dated 21.03.2023 finding that there are _prima facie_ materials to see the involvement of the accused in this crime. The learned Public Prosecutor further submitted that even though the petitioner alleges false implications and he moved before this Court by filing Crl.M.C No.6742/2023, as per Annexure IX order this Court dismissed the application. He also pointed out that disposal of W.P(Crl) No.996/2023 filed by the wife of the petitioner for direction to consider Ext.P6 filed by her and deferment of the trial of the case till passing of final orders in Ext.P6 by the 2[nd] respondent, the State Police Chief. The learned B.A.No.9054/2023 5 Public Prosecutor placed report filed by Salim K., Superintendent of Police, Crime Branch, Palakkad, addressing the grievance as raised in Ext.P6 representation in the Writ Petition, i.e, W.P(Crl) No.996/2023, and finally filed a detailed report as on 29.11.2023 finding that the grievance posed in Ext.P6 representation is meritless. 7. In this matter, the petitioner has been in custody from 21.09.2022 and he had filed Crl.M.C, Writ Petitions etc. in this crime, raising allegation of false implication. Repeated investigations in this regard found that the allegation raised by the petitioner is incorrect. In the case at hand, the specific case of prosecution is that when the petitioner was carrying 140 grams of MDMA near AL HILAL in Academy PadapparambuPerinthalmanna Public Road, he was nabbed red-handedly. Thereafter the 2[nd] accused was also nabbed as the person who involved in this crime and both the accused have been in custody. At the time of considering the second bail application (B.A.No.5506/2023) filed by the 2[nd] accused, this Court directed B.A.No.9054/2023 6 early disposal of S.C.No.90/2023 and the sme was not materialised so far and the direction to defer the trial ordered in the judgment in W.P(Crl).No.996/2023 dated 06.10.2023 also is a reason for the delay in completing the trial. 8. Now the learned Special Judge reported as per the communication dated 03.02.2024 that by the order in B.A.No.5506/2023, this Court directed the Special Court to dispose of S.C.No.90/2023 on or before 15.05.2024. Accordingly, the trial scheduled and the case stands posted for examination of CW1 on 19.02.2024. The learned Special Judge also reported that the trial could be completed within a period of four months. 9. In this matter, innocence of the petitioner, as contended before this Court, is a matter to be proved during trial and as per the available materials, on no stretch of imagination, this Court could hold that the prosecution case is without any basis and the petitioner was falsely implicated in this case. To put it otherwise, there are materials in abundance, _prima facie,_ to justify the prosecution allegations, in a case of red-handed recovery. B.A.No.9054/2023 7 10. Grant of bail in NDPS case is governed under Section 37 of the NDPS Act and without satisfying the twin conditions provided therein, bail cannot be considered. 11. Here, admittedly commercial quantity of contraband was seized and, therefore, the rigour under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: _“37. Offences to be cognizable and non-bailable.--_ _(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) or any other law for the time being in force on granting of bail._ 12. 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, B.A.No.9054/2023 8 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. 13. 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 and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 14. 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 B.A.No.9054/2023 9 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. 15. 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 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 B.A.No.9054/2023 10 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]. The latest decision on this point is [2023 CriLJ 799], _**Union of India v. Jitentra Giri**_ . 16. 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. 17. It is true that in [2023 (3) KHC 212], _**Fasil v. State of**_ B.A.No.9054/2023 11 _**Kerala**_ , this Court laid down certain parameters to consider deletion of the rigour under Section 37 of the NDPS Act and the same are as under: _“10. Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act:_ _(1) the accused should not have any criminal antecedents._ _(2) the accused has been in custody for a pretty long time, at least more than one year, (say for eg. two years and 15 days in the instant case)._ _(3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months)._ _Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”_ One of the parameters was impossibility of trial within a period of six months. Since the trial stalled due to repeated filing of Crl.M.C and W.P(Crl.) by the petitioner and now the learned Special Judge expressed the willingness to complete the trial within four months, the ratio in _**Fasil**_ ’s case ( _supra_ ) also cannot be applied to the facts of this case. 18. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner B.A.No.9054/2023 12 and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, application for regular bail at the instance of the petitioner must fail, with direction to the Special Court to complete trial within four months, as reported. Hence the petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_