Vimal v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 BAIL APPL. NO. 471 OF 2023 CRIME NO.1278/2022 OF EAST KALLADA POLICE STATION, KOLLAM ``` ## **`NAME AND ADDRESS OF THE PETITIONER/ACCUSED NO.2:`** ``` VIMAL AGED 24 YEARS S/O. ANILKUMAR, UTHRADAMVEEDU, KARIKKODUMURRI, KERALAPURAM, KOTTAMKARA VILLAGE, KOLLAM , PIN - 691501 ``` ``` BY ADVS. K.V.ANIL KUMAR SWAPNA VIJAYAN(K/001165/2006) ``` ## **`NAME AND ADDRESS OF THE RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 ``` ``` BY ADV T V NEEMA SR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No. 471 of 2023 2 ## **A.BADHARUDEEN, J.** ## **-----------------------------------------------** ## **BAIL APPL. No.471 of 2023** ## **-----------------------------------------------** ## **Dated this the 6[th] day of March, 2023.** ## **O R D E R** This is an application for regular bail filed by the second accused in Crime No.1278/2022 of the East Kallada Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the case diary along with relevant materials placed by the learned Public Prosecutor. 4. The prosecution case is that at about 17.30hrs on 01.11.2022, the first accused was arrested red handedly along with 43.8049 gms of MDMA, while he was possessing the same. Accordingly, crime alleging commission of offences under BA No. 471 of 2023 3 Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience) was registered. During the recovery of contraband from the first accused, ATM Card belonged to the second accused was also seized by the police. When investigation was carried out in relation to the said ATM Card, it was found that the second accused provided the ATM card to withdraw money from the account of the second accused for the purpose of purchase of MDMA by the first accused at his instance. Bank transaction during the relevant period by using the ATM card and call records showing constant contacts in between the first and second accused during the relevant period were also collected by the Investigating Officer. Thus, the second accused also was incorporated in this crime and thereby prosecution alleges commission of offences under Sections 22(c) and 29 of the NDPS Act. 5. The learned counsel for the petitioner would submit that the petitioner is innocent and nothing recovered from him. It is also pointed out that the petitioner has given his ATM card BA No. 471 of 2023 4 to the first accused for not for the purpose of purchasing contraband but for other purposes. The learned counsel for the petitioner highlighted the custody of the petitioner from 28.11.2022 and the progress of investigation. 6. The learned Public Prosecutor opposed for bail. The learned Public Prosecutor would submit that the petitioner is a person who had been supplying MDMA to various persons in Kollam District and vital materials in this regard were collected during the investigation. He also pointed out that since the ATM card of the second accused was seized at the time of recovery of MDMA from the first accused and subsequent investigation revealed that the second accused handed over the ATM Card for the purpose of purchase of MDMA to the first accused, the allegation as against the petitioner is well made out prima facie and therefore he is not liable to be released on bail in a case involving commercial quantity of contraband without satisfying the twin conditions provided under Section 37 of the NDPS Act. 7. On perusal of the report of the investigating officer, initially the first accused was nabbed on 01.11.2022 with BA No. 471 of 2023 5 43.8049 gms of MDMA. At the time of recovery, ATM card of the second accused was also recovered. On further investigation, it was revealed that the second accused is the person who has entrusted the ATM card for withdrawal of money for the purpose of purchase of MDMA. That apart, constant calls in between first and second accused during the relevant period were also collected during the investigation. Thus the complicity of the petitioner in the matter of transport of contraband is well established prima facie as pointed out by the learned Public Prosecutor and in such a case, the rigor of 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 punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity BA No. 471 of 2023 6 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. 8. 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 offence while on bail. 9. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC BA No. 471 of 2023 7 798, **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. 10. 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 has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 11. While considering the rider under Section 37 of the BA No. 471 of 2023 8 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 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]. Latest decision on this point is [2023 Cri.LJ 799], **Union of** BA No. 471 of 2023 9 ## **India v. Jitentra Giri** . 12. 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. 13. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, this application for regular bail at the BA No. 471 of 2023 10 instance of the petitioner must fail. Hence the petition stands dismissed. **Sd/-** **A.BADHARUDEEN, JUDGE.** Mn BA No. 471 of 2023 11 ## **`APPENDIX OF BAIL APPL. 471/2023`** ``` PETITIONER ANNEXURES Annexure 1 ``` ``` CERTIFIED COPY OF THE ORDER DATED 31/12/2022 IN CRL. M.C. NO. 2604/2022 ```