Vishnu Prasad v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 BAIL APPL. NO. 1036 OF 2023 ``` ## CRIME NO.625/2022 OF KADAKKAVOOR POLICE STATION, THIRUVANANTHAPURAM. ## **`PETITIONER/3RD ACCUSED:`** ``` VISHNU PRASAD AGED 28 YEARS S/O GIREESH, RESIDING AT MRA-96, ANCHANEYAM, PARUTHIVILA, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695013 BY ADVS. J.R.PREM NAVAZ PREETHA RANI M.S. SUMEEN S. O.MOHAMED BASIL KOYA THANGAL MUHAMMED SWADIQ ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` BY SR.PUBLIC PROSECUTOR SRI. P G MANU ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 1036 OF 2023 2 ``` ## ORDER Dated this the 17[th] day of February, 2023. This is an application for regular bail, filed by the 3[rd] accused in Crime No.625/2022 of Kadakkavoor Police Station, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the case diary materials including the report filed by the Investigating Officer. 4. The prosecution allegation is that, at about 11.45 a.m. on 28.9.2022, as part of conspiracy hatched between accused Nos.1 and 2, along with other accused, jointly possessed 320 grams of MDMA for the purpose of sale and the same was nabbed by the Detecting Officer. On this premise, prosecution alleges commission of offence punishable under Sections 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter). Subsequently, accused Nos.3 and 4 got arrayed as accused, on the allegation that the 3[rd] accused brought contraband from the 4[th] accused and handed over the same to accused Nos.1 and 2. Accordingly, now ``` BAIL APPL. NO. 1036 OF 2023 3 ``` the prosecution alleges commission of offences punishable under Section 22(c) r/w Section 29 of the NDPS Act. 5. While pressing for regular bail to the petitioner, the learned counsel for the petitioner pointed out that, nothing recovered from the physical possession of the petitioner and the petitioner has no role in this occurrence. He would submit that, apart from the confession statement recorded as that of accused Nos.1 and 2, which are inadmissible in evidence, nothing on record to substantiate the complicity of the petitioner in this matter. Therefore, the petitioner, who has been in custody from 10.10.2022, is liable to be released and the rider under Section 37 of the NDPS Act also would not attract in the case of the petitioner, since he is absolutely innocent. 6. The learned Public Prosecutor would submit that 320 grams of MDMA was recovered from accused Nos.1 and 2 and on later investigation, it was revealed that accused Nos.1 to 4 hatched conspiracy and as part of the same, the 3[rd] accused brought the contraband from the 4[th] accused and in turn, handed over the same to accused Nos.1 and 2. The learned Public Prosecutor also pointed out the telephone calls between accused Nos.1, 2 and 3 from their respective mobile numbers and whats app messages, to show the complicity of the petitioner also in this occurrence. According to the learned Public ``` BAIL APPL. NO. 1036 OF 2023 4 ``` Prosecutor, the 3[rd] accused is the main link between the 4[th] accused and accused Nos.1 and 2, to transport contraband and he is the middle man in the illegal drug deal in Thiruvananthapuram. 7. On perusal of the available materials, the Investigating Officer found to have collected the materials connecting the 3[rd] accused and the same includes the telephone calls and whats app messages, while alleging that, it was the 3[rd] accused, who brought the contraband from the 4[th] accused and handed over the same to accused Nos.1 and 2. In fact, these are all matters of evidence. However, this Court, at this stage, cannot say that the petitioner is absolutely innocent. 8. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: 37. Offences to be cognizable and non-bailable.-- - (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 shall be released on bail or on his own bond unless-- - (i) the Public Prosecutor has been given an opportunity to oppose the ## **`BAIL APPL. NO. 1036 OF 2023 5`** 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. 9. 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. 10. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 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 ``` BAIL APPL. NO. 1036 OF 2023 6 ``` that the accused is not guilty of the offence charged. 11. 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. 12. While considering the rider under Section 37 of the 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) ``` BAIL APPL. NO. 1036 OF 2023 7 ``` 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]. The latest decision on this point is one reported in [2023 Crl.L.J.799], Union of India v. Jitendra Giri . 13. 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. 14. Thus, this Court while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, ``` BAIL APPL. NO. 1036 OF 2023 8 ``` where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 15. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/A. BADHARUDEEN JUDGE Bb //TRUE COPY// PA TO JUDGE