Subin Raj v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023/19TH MAGHA, 1944 BAIL APPL. NO.618 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED 15.09.2022 IN CRMC 2586/2022 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD S.C.NO.1041/2022 OF ADDITIONAL DISTRICT & SESSIONS COURTIII, PALAKKAD IN CRIME NO.24/2022 OF PALAKKAD EXCISE RANGE OFFICE, PALAKKAD** ## **PETITIONER/ACCUSED No.1:** SUBIN RAJ, AGED 24 YEARS, S/O.RAJAN, DANIEL BHAVAN, KALLIKKAD VILLAGE, ANDIVILAKOM, KATTAKKADA TALUK, THIRUVANANTHAPURAM, PIN – 695543. BY ADVS. E.VIJIN KARTHIK VINAY VIJAY SHANKER ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN – 682031. BY ADV. SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON 08.02.2023, DELIVERED THE FOLLOWING: **B.A. No.618 of 2023** 2 ## **O R D E R** ## **Dated, this the 8[th] February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, by the petitioner, who is the 1[st] accused in S.C. No.1041/2022 pending before the Special Court (Additional Sessions Court-III), arose out of Crime No.24/2022 of Excise Range Office, Palakkad, where he alleged to have committed offences punishable under Sections 20(b)(ii)(c) read with Section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act', for short), and the petitioner seeks regular bail. **==> picture [394 x 11] intentionally omitted <==** petitioner as well as the learned Public Prosecutor. 3. The prosecution allegation in this case is that at about 3:00 p.m. on 06.05.2022, accused Nos.1 and 2 were found in possession of ## **B.A. No.618 of 2023** 3 20.5 Kg of Ganja near the foot over bridge in between platform Nos.2 and 3 of railway station, Palakkad. Accordingly, the accused Nos.1 and 2 were nabbed and the contraband taken into custody. Thereafter, crime was registered alleging commission of the above offences. 4. The learned counsel for the petitioner vehemently argued for grant of bail to the petitioner on the submission that he is innocent. According to the learned counsel for the petitioner, the Excise party jointly recovered the alleged contraband separately possessed by the petitioners and taken the same together after finding that the same would come to 20.5 Kgs, commercial quantity. According to the learned counsel for the petitioner, if the contraband possessed by the petitioner/the 1[st] accused and 2[nd] accused, were separately weighed, the quantity should be intermediate 4 ## **B.A. No.618 of 2023** quantity. Highlighting the custody of the petitioners from 06.05.2022 and the progress of investigation, the learned counsel for the petitioner pressed for grant of bail. 5. Whereas, the learned Public Prosecutor zealously opposed bail and submitted that since the contraband is commercial quantity, this Court cannot grant bail without satisfying the twin conditions provided under Section 37 of the NDPS Act. 6. Hence, the prosecution alleges possession of commercial quantity of contraband. In such cases 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.--_ _(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_ **B.A. No.618 of 2023** 5 _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._ 7. On a perusal of the Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of an accused 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) 6 ## **B.A. No.618 of 2023** he will not commit any offence while on bail. 8. 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. 9. 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 ## **B.A. No.618 of 2023** 7 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. 10. 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 ## **B.A. No.618 of 2023** 8 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] 11. 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 ## **B.A. No.618 of 2023** 9 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. 12. In the case at hand, the prosecution allegation is that accused Nos.1 and 2 jointly possessed 20.5 Kg of Ganja, and the prosecution records do justify the said allegation _prima facie_ . Therefore, the argument advanced by the learned counsel for the petitioner to treat the contraband as intermediate quantity cannot be justified. As such, the contraband involved in this case is commercial quantity and the rider under Section 37 of the NDPS Act, would squarely apply. ## **B.A. No.618 of 2023** **==> picture [13 x 9] intentionally omitted <==** In fact, this Court cannot hold that the petitioner did not commit the offence alleged _prima facie_ and he will not commit any offence in future. Therefore, this bail application fails and is accordingly dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 11 ## **B.A. No.618 of 2023** ## **APPENDIX OF BAIL APPL.618/2023** ## PETITIONER'S ANNEXURES: ANNEXURE 1 THE TRUE COPY OF THE SEIZURE MAHAZAR DATED 6/5/2022. ANNEXURE 2 THE TRUE COPY OF THE ORDER DATED 15-092022 IN CRL.MC-2586/2022 SESSIONS COURT, PALAKKAD.