Vishal P v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945** **BAIL APPL. NO. 9265 OF 2023** **CRIME NO.393/2023 OF PANTHEERANKAVU POLICE STATION, KOZHIKODE** **AGAINST THE ORDER/JUDGMENT CMP 919/2023 OF SPECIAL COURT (NDPS ACT CASES),** ## **VADAKARA** ## **PETITIONER/APPLICANT:** **VISHAL P, AGED 32 YEARS S/O VIJAYAN, KOMALATH HOUSE, MANNUR POST, PRABHONI, KOZHIKODE, PIN - 682673** **BY ADVS. PRAVEEN.H. A.SANOOJ E.SILPA** ## **RESPONDENT/RESPONDENT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER, PANTHEERANKAVU POLICE STATION,PANTHEERANKAVU, KOZHIKODE, PIN - 682673** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.9265 OF 2023** **2** ## **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.393/2023 of the Pantheerankavu Police Station, Kozhikode, registered against the accused (3 in number) for allegedly committing the offences punishable under Section 8 r/w. 22(c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). The petitioner had surrendered on 14.06.2023. 2. The gist of the prosecution case is that: on 31.05.2023 at 2.10 p.m., the accused 1 & 2 were found in conscious possession of, as they were transporting, 392.70 gms of MDMA in a lorry bearing Reg.No.KL 58 D 7799 on the Thondayad – Pantheerankavu NH Bye-pass. In the subsequent investigation, it was revealed that the third accused is a close friend of the accused 1 and 2 and he aided in procuring the contraband article. Thus, the accused have committed the above offences. 3. Heard Sri.Praveen Hariharan, learned counsel appearing for the petitioner and Smt.Neema T.V., the learned **BAIL APPL.NO.9265 OF 2023** **3** Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has no criminal antecedents. The petitioner has been implicated as the accused on the alleged confession made by the accused 1 and 2 to the investigating officer. The petitioner is a 32 year old man and is hailing from a decent family. The petitioner has been in custody since 14.06.2023. The investigation in the case is complete and the Final Report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. 6. The investigating officer has filed a report dated 06.12.2023 stating that the contraband article was seized from the accused 1 and 2. During their custodial interrogation, it was revealed that, it was the petitioner who had received an amount of Rs.50,000/- in his bank account from the first accused on the date of purchase of the contraband article in Bengaluru. The contraband article was purchased by the third accused, who took the first accused on his motorcycle bearing Reg.No.KL 11 BR **BAIL APPL.NO.9265 OF 2023** **4** 7754, which has also been seized. The investigation in the case prima facie reveals that the petitioner has complicity in the crime. The investigation is still in progress. The rigour under Section 37 of the Act applies on all fours in the case on hand. Hence the application may be dismissed. 7. The prosecution case is that the accused 1 and 2 were found in conscious possession of 392.79 gms of MDMA on 31.05.2023. In the custodial interrogation of accused 1 and 2, they allegedly confessed that it was through the petitioner that the contraband article was seized. Accused 1 and 2 had paid an amount of Rs.50,000/- to the petitioner to purchase the said contraband article and the petitioner taken the accused 1 and 2 on his motorcycle and purchased the article. The transaction records and the vehicle have been seized. 8. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving an offence under the Act. It is apposite 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 **BAIL APPL.NO.9265 OF 2023** **5** ## 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 subsection (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.” (highlighted) 9. A reading of the above provision indicates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and 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, an accused alleged to have committed an offence under the Act is entitled to be enlarged on bail not only subject to provisions under Sec.439 of the Code but also on satisfying the twin conditions contemplated **BAIL APPL.NO.9265 OF 2023** **6** under Sec.37 of the Act. 10. The Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] has interpreted the expression ‘reasonable grounds’ under Section 37 of the Act in the following manner: “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” 11. 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 thus: “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 **BAIL APPL.NO.9265 OF 2023** **7** NDPS Act have been prescribed”. 12. This Court reminisces the decision in **State of Kerala and others v. Rajesh and others** [(2020) 12 SCC 122], an appeal arising from a bail order passed by this Court granting bail to a person accused of an offence under the Act, wherein the Honourable Supreme Court went to hold as follows: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. **BAIL APPL.NO.9265 OF 2023** **8** 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of **BAIL APPL.NO.9265 OF 2023** **9** power to grant bail is not only subject to the limitations contained under Section 439 Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act”. **BAIL APPL.NO.9265 OF 2023** **10** 13. In addition to the above precedents, in **Prasanta Kumar** **Sarkar v. Ashis Chatterje** e [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding thus: “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”. 14. On a meticulous scrutiny of the factual matrix and the law referred to above, particularly taking note of the gravity of the accusations levelled against the petitioner, the severity of the **BAIL APPL.NO.9265 OF 2023** **11** punishment that can be imposed on him in the event of him being found guilty and the materials that have been placed on record, I am at this stage satisfied that there are reasonable grounds to believe that the petitioner is guilty of the offence alleged against him and there is a likelihood of him committing a similar offence if he is released on bail. I do not find any cogent grounds to dilute the rigour under Section 37 of the Act. The application lacks merits and it is only to be dismissed. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS JUDGE** ## **shg**