Titu T.S v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 19 OF 2024 CRIME NO.19/2023 OF TRIVANDRUM EXCISE CIRCLE OFFICE, THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER DATED 19.12.2023 IN CRMP 13085/2023 OF ADDITIONAL DISTRICT COURT (ADHOC), THIRUVANANTHAPURAM ``` ## `PETITIONER/ACCUSED NO.6` ``` TITU T.S AGED 35 YEARS S/O THANKACHAN, RESIDING AT TC 45/964(2), LOVE NEST, CHERIYATHURA, VALLAKADAVU POST, THIRUVANANTHAPURAM, PIN – 695008 BY ADVS.GODWIN JOSEPH VINOD.R(K/860/1999) ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH CIRCLE INSPECTOR, EXCISE ENFORCEMENT AND ANTI-NARCOTICS SPECIAL SQUAD, THIRUVANANTHAPURAM, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.19/2024 -:2:- Dated this the 30[th] day of January,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sixth accused in Crime No.19/2023 of the Thiruvananthapuram Excise Circle, Thiruvananthapuram, registered against the accused (10 in number) for allegedly committing the offences punishable under Sections 8(c),22(C) 20(b)(ii) (C), 25, 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 13.11.2023. 2. The essence of the prosecution case, is that: Around 7.00 p.m., on 09.07.2023, the accused in furtherance of their common intention, were found in possession of 155.480 Kgs. of ganja and 70.71 MDMA for the purpose of sale, in a car bearing registration No.KL-01-CY-2624 and also in the house belonging to one Omanakuttan at Pallithura. The accused Nos.1 to B.A.No.19/2024 -:3:- 4 were arrested on the same date with the contraband article and were taken into custody. During the investigation, it was revealed that the accused Nos.5 to 7 were also involved in the crime. Thus, the accused have committed the above offence. 3. Heard; Sri. Godwin Joseph, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. Initially, the case was registered only against the accused Nos.1 to 4. It is solely based on the confession of the accused Nos.1 to 4, the petitioner has been implicated in the crime. Going by the law laid down in **Tofan Singh v. State of Tamilnadu** [2020 (6) KHC 111], the B.A.No.19/2024 -:4:- petitioner cannot be implicated as an accused. The petitioner had certain transactions with the first accused on account of the repair of his vehicle, which is evident from Annexure-A2 invoice. The petitioner is the sole breadwinner of his family. The investigation in the case is practically complete and recovery has been effected. The petitioner has been in incarceration since 13.11.2023. The petitioner’s continuous detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor stoutly opposed the application. He contended that the petitioner is a person with criminal antecedents. He is involved in nine other cases, including two cases under the NDPS Act. The petitioner was the person who financed the transaction. There are 26 financial transactions between the petitioner and the first accused and the petitioner’s mother to the third accused. There are B.A.No.19/2024 -:5:- also 156 calls made by the petitioner to the first accused, 11 calls made by the petitioner to the second accused and several other calls to the other accused. All the above incriminating materials establish that the petitioner is the mastermind of the crime. The contraband that has been seized is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts and circumstances of the case. If the petitioner is released on bail, it would have deleterious impact on the society. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he financed the accused Nos.1 and 2 to purchase the contraband article, which admittedly is of a commercial quantity. It is also brought on record that there are financial transactions as well as frequent communication between the petitioner and the other accused. Since the contraband is of a commercial B.A.No.19/2024 -:6:- quantity, Section 37 of the NDPS Act applies to the facts and circumstances of the case. 7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows: ## “37. **Offences to be cognizable and non-bailable** .— (1) Notwithstanding anything contained in the Criminal Procedure Code, 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” ## 8. A plain reading of the above provision B.A.No.19/2024 -:7:- demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 9. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not B.A.No.19/2024 -:8:- 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”. ## 10. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 11. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 12. In **Prasanta Kumar Sarkar v. Ashis** B.A.No.19/2024 -:9:- **Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 13. After bestowing my anxious consideration to the materials placed on record, taking into account the nature, seriousness and gravity of the accusations B.A.No.19/2024 -:10:- leveled against the petitioner, that the contraband article is of commercial quantity, that the petitioner is a person with criminal antecedents, including offences committed under the NDPS Act, and that the rigour under Section 37 of the NDPS Act applies to the facts and circumstances of the case, I do not find any reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. Therefore, I am of the view that the application is meritless and is only to be dismissed. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/30.01.24 //True copy// P.A. To Judge B.A.No.19/2024 -:11:- ## `APPENDIX OF BAIL APPL. 19/2024` - `PETITIONER ANNEXURES ANNEXURE A1 A TRUE COPY OF THE REMAND REPORT OF ACCUSED NOS. 6 AND 7 DATED 14.11.2023 IN CRIME NO. 19/2023 (ECB 25/23) OF THE EXCISE ENFORCEMENT AND ANTI-NARCOTIC SPECIAL SQUAD, THIRUVANANTHAPURAM` - `ANNEXURE A2 A TRUE COPY OF THE TAX INVOICE NO. SERVTRJB22000382 DATED 21.04.2021 TO THIS PETITIONER ISSUED FROM T.V. SUNDARAM IYENGAR & SONS (P) LTD., THIRUVANANTHAPURAM` - `ANNEXURE A3 A TRUE COPY OF THE PAYMENT RECEIPT NO. RITVM21RTS004406 DATED 22.03.2021 ISSUED TO THIS PETITIONER BY T.V. SUNDARAM IYENGAR & SONS (P) LTD.` - `ANNEXURE A4 A TRUE COPY OF THE PAYMENT RECEIPT NO. RITVM22RTS002220 DATED 13.10.2021 ISSUED TO THIS PETITIONER BY T.V. SUNDARAM IYENGAR & SONS (P) LTD` - `ANNEXURE A5 A TRUE COPY OF THE RELEVANT PAGES OF THE BANK A/C STATEMENT OF THE PETITIONER AT INDIAN BANK ENCHAKKAL BRANCH, FROM 01.05.2023 TO 15.11.2023.` - `ANNEXURE A6 A TRUE COPY OF THE NOTICE DATED 07.11.2023 ISSUED TO THIS PETITIONER BY THE EXCISE CIRCLE INSPECTOR - I, EXCISE CRIME BRANCH, U/S. 161 CRPC` - `ANNEXURE A7 CERTIFIED COPY OF THE ORDER DATED 19.12.2023 IN CRL. M.P. NO. 13085/2023 OF THE HON'BLE COURT OF ADDITIONAL SESSIONS JUDGE - I, THIRUVANANTHAPURAM`