UGWU IKECHUKWU v. STATE OF KERALA

1 Bail Application No.9313 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 11[TH] DAY OF JUNE 2024 / 21ST JYAISHTA, 1946 BAIL APPL. NO. 9313 OF 2023 ``` ``` CRIME NO.260/2023 OF Kunnamangalam Police Station, Kozhikode PETITIONER/S: ``` ``` UGWU IKECHUKWU,AGED 40 YEARS,S/O. EMMA, LAGOS,NSUKKA (HOME TOWN), ENUGU, NIGERIA.NOW RESIDING AT RAYPURAM, THIRUPPURE, TAMIL NADU, PIN - 600013 ``` ``` BY ADVS. SAM ISAAC POTHIYIL NEETHU SATHEESH S.SURAJA MUHAMMED SUHAIR C.A KARAN MATHEW JOHNSON M.M. RAMU SUBHASH HARITHA S. SANOJ M.A. ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, KUNNAMANGALAM POLICE STATION, KOZHIKODE DISTRICT, PIN - 673571`** ## **`OTHER PRESENT:`** ## **`Sr PP Smt Seetha S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.9313 of 2023 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No.9313 of 2023 ----------------------------------Dated this the 11[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.260/2023 of the Kunnamangalam Police Station, Kozhikode, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 22(c) read with Sec.29 of the Narcotic Drugs and Psychotropic Substances Act. The petitioner was arrested on 10.4.2023. 2 **.** The essence of the prosecution case is that: on 9.4.2023, at around 23.20 hours, the accused were found in conscious possession of 372 grams of MDMA, which was being transported in a car bearing registration No.KL 85/4474 3 Bail Application No.9313 of 2023 through Kunnamangalam Tottupuram National Highway. The accused were arrested on the spot with the contraband article. Thus, the accused have committed the above offences. 3. Heard; Sri.Sam Issac Pothiyil, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. In fact, the contraband was allegedly seized from the accused 1 and 2. In any given case, the petitioner has been in judicial custody for the last 14 months, the investigation in the case is practically complete and final report has been laid. The petitioner was nowhere at the place of incident. Actually, the case stands posted for framing of charge. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 4 Bail Application No.9313 of 2023 5. The learned Public Prosecutor seriously opposed the application. She submitted that the Investigating Officer has filed a bail objection report, inter alia, opposing the application. The Investigating Officer has stated that the petitioner is a Nigerian national and is the kingpin in the crime. If the petitioner is released on bail, there is every likelihood of him fleeing from justice. Moreover, the contraband involved in the case is of commercial quantity. Therefore, the rigour under Sec.37 of the Act applies. Hence, the application is only to be dismissed. 6. The prosecution allegation is that the accused had hatched a conspiracy and were found in possession of 372 grams of MDMA. Indisputably, the contraband involved is of commercial quantity. Therefore, the rigour under Sec.37 of the Act applies. 5 Bail Application No.9313 of 2023 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 27-A 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 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. 6 Bail Application No.9313 of 2023 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 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: 7 Bail Application No.9313 of 2023 “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 drug-trafficking 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 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 8 Bail Application No.9313 of 2023 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. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, the materials placed on record and on comprehending the seriousness, gravity, and nature of the offences alleged against petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband is involved in the case and the prima facie material that has been placed before this Court to substantiate the petitioner’s involvement in the crime, I am not satisfied that there are 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. The petitioner has not made out valid grounds to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is 9 Bail Application No.9313 of 2023 only to be rejected. Nonetheless, considering the fact that the petitioner is a foreign national and his family is also in India, I direct the Trial Court to consider and dispose of SC No.144/2023, in accordance with law, in precedence to older pending matters. sd/- sks/11.6.2024 **C.S.DIAS,JUDGE**