Surat S v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ``` BAIL APPL. NO. 3354 OF 2023 NDPS CRIME NO. 27/2023 OF Excise RANGE OFFICE ``` ## `NEYYATTINKARA, THIRUVANANTHAPURAM` ## `PETITIONER/PETITIONER:` ``` SURAT S AGED 22 YEARS S/O SURENDRAN PILLAI , MUNDANDIYANIVILA VEETTIL , PADINJATTATHIL , CHATHINAMKULAM , CHANDANATHOPPU , PERINAD PO , KOLLAM, PIN - 691601 ``` ``` BY ADV M.R.SASITH ``` ## `RESPONDENT/RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN - 682031 ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` OTHER PRESENT: ``` ``` SR PP P G MANU ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No. 3354 of 2023 ..2.. ## A.BADHARUDEEN, J. -------------------------------------------------------BAIL APPL. No. 3354 of 2023 -------------------------------------------------------- Dated this the 25[th] day of May, 2023 ## O R D E R This is an application for regular bail filed by the sole accused in Crime No.27/2023, of Neyyattinkara Police Station, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents form part of the case diary, placed by the learned Public Prosecutor. 4. The prosecution case in brief is that, at about 7.45 a.m on 15.04.2023, the accused was found in possession of 46.37 grams of MDMA and accordingly, he was nabbed red handedly. Thereafter, crime alleging commission of offences punishable under Section 22 (c) and 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, registered and is on investigation. BA No. 3354 of 2023 **==> picture [24 x 12] intentionally omitted <==** 5. According to the learned counsel for the petitioner, the petitioner is innocent and the allegations are false. The learned counsel for the petitioner pressed for grant of regular bail to the petitioner. 6. Whereas, the learned Public Prosecutor submitted that in this case, 46.37 grams of MDMA was seized red handedly and the accused cannot be released on bail, since the grant of bail is interdicted by Section 37 of NDPS Act. It is also submitted that the investigation is in the extreme primitive stage and the petitioner cannot be released on regular bail. 7. In this matter, red handed recovery of 46.37 grams of MDMA is established, prima facie and the investigation is in the extreme primitive stage. Further, this Court cannot grant regular bail to the petitioner without satisfying the conditions under Section 37 of NDPS Act. 8. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides BA No. 3354 of 2023 ..4.. ## 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._ 9. 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, 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 BA No. 3354 of 2023 ..5.. offence while on bail. 10. 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. 11. 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 for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court BA No. 3354 of 2023 **==> picture [24 x 12] intentionally omitted <==** has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 12. 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 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 BA No. 3354 of 2023 **==> picture [24 x 10] intentionally omitted <==** 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 one reported in [2023 Crl.L.J.799], Union of India v. Jitendra Giri . 13. 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. 14. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes BA No. 3354 of 2023 **==> picture [24 x 12] intentionally omitted <==** grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 15. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- A.BADHARUDEEN, JUDGE mtk