Unni @ Sajith v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 17[TH] DAY OF JANUARY 2024 / 27TH POUSHA, 1945 BAIL APPL. NO. 10482 OF 2022** **CRIME NO.352/2022 OF Kuruppampady Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CRMC 2699/2022 OF DISTRICT COURT &** ## **SESSIONS COURT, ERNAKULAM** ## **PETITIONER/S:** UNNI @ SAJITH AGED 41 YEARS S/O SIVADASAN, PUTHUVAIPARAMBU HOUSE, NOW RESIDING AT NEAR CHATHAVELIPADAM BHAGAM, C/O JOHNSON, KAKKANAD NGO QUARTERS KARA, THRIKKAKARA NORTH VILLAGE, ERNAKULAM, PIN - 682030 BY ADV ANITHA MATHAI MUTHIRENTHY ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** ADGP SRI.GRACIOUS KURIAKOSE SR PP SMT SEETHA S SR PP SRI.C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 10482 OF 2022 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 3[rd] accused in Crime No.352/2022 of the Kuruppampady Police Station, Ernakulam, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 29, 27A, 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 22.05.2022. 2. The gist of the prosecution case is that: the accused in furtherance of their common intention hatched a conspiracy and the 1[st] accused was found in possession of 248.165 kilograms of dry ganja. On the basis of the confession made by the 1[st] accused, the 3[rd] accused was arraigned in the crime. It is revealed in the investigation that, the 3[rd] accused had gone to Orissa and collected the contraband article from the 8[th] accused. There are materials to substantiate that there were communications between the 3[rd] accused and the BAIL APPL. NO. 10482 OF 2022 3 8[th] accused. There are also materials to show that there were financial transactions between the 2[nd] accused and 8[th] accused. Thus, the accused have committed the above offences. 3. Heard; Smt.Anitha Mathai Muthirenthi, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime solely on the basis of the alleged confession statement made by the 1[st] accused. The confession statement of the 1[st] accused cannot be taken on its face value in view of the law laid down in **Tofan Singh vs. State of Tamilnadu** [2020 (2) KLD 781]. The petitioner has been in incarceration since 22.05.2022, which is more than 1½ years. The investigation in the case is complete and the final report has been laid. The petitioner's mother passed away and the petitioner has to do the obsequies due to the death. The petitioner is BAIL APPL. NO. 10482 OF 2022 4 willing to abide by any stringent conditions that may be imposed by this Court. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He contended that there are sufficient materials to prove that the petitioner is involved in the above crime. The investigation reveals that, it is the petitioner who went to Orissa and collected the contraband article from the 8[th] accused. This Court has dismissed the bail applications filed by the accused Nos.5 and 6 as per the orders in B.A.Nos.5516/2022 and 5289/2022. There are reasonable grounds to believe that the petitioner has committed the above offences. Therefore, the rigour under Section 37 of the Act is attracted. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. The gist of the prosecution case is that, the 1[st] accused was found in possession of 248.165 kilograms of dry ganja on 22.05.2022. On the basis of the BAIL APPL. NO. 10482 OF 2022 5 confession made by the 1[st] accused, the petitioner has been arraigned as an accused and, therefore, Section 29 of the Act has been incorporated. The contraband article is of commercial quantity. 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 BAIL APPL. NO. 10482 OF 2022 6 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 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** BAIL APPL. NO. 10482 OF 2022 7 [(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 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 BAIL APPL. NO. 10482 OF 2022 8 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”. On a comprehensive consideration of the facts and materials placed on record, especially the fact that the investigation reveals specific overt act of the petitioner, that he was the one who went and collected the contraband article from Orissa, which is of commercial quantity, and taking into account the gravity, nature and seriousness of the accusations leveled against the petitioner and further the rigour under Section 37 of the Act, I am not at this stage satisfied that the petitioner is not guilty of the offences alleged against him and that BAIL APPL. NO. 10482 OF 2022 9 he is not likely to commit a similar offence, if he is enlarged on bail, so as to dilute the rigour under Section 37 of the Act. The application is meritless and is only dismissed. Resultantly, the application is dismissed. Sd/- **C.S.DIAS JUDGE** rkc/17.01.24 BAIL APPL. NO. 10482 OF 2022 10 ## **APPENDIX OF BAIL APPL. 10482/2022** PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO. 352/2022 OF KURUPAMPADY POLICE STATION DATED 15.04.2022 Annexure A2 FREE COPY OF THE ORDER OF THE HONOURABLE SESSIONS COURT, ERNAKULAM IN CRIMINAL M.C. NO. 2699/2022 DATED 29.11.2022