Vishnu Vijayan v. State of Kerala

1 Bail Application No. 2490 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 BAIL APPL. NO. 2490 OF 2024 ``` ``` CRIME NO.1665/2023 OF Anchal Police Station, Kollam PETITIONER/S: ``` ``` VISHNU VIJAYAN, AGED 24 YEARS S/O VIJAYAKUMAR,PADIKAL HOUSE, KADAMUKKU,NARANGANAM PO,KOZHENCHERRY VILLAGE,PATHANAMTHITTA, PIN - 689642 ``` ``` BY ADVS. V.I.RAHUL SHIFA LATHEEF ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2INSPECTOR OF POLICE/ISHO, ANCHAL POLICE STATION, KOLLAM DISTRICT, PIN - 691306 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 2490 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No. 2490 of 2024 ----------------------------------Dated this the 12[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 second accused in Crime No.1665/2023 of the Anchal Police Station, Kollam, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 22(c), 20(b) (ii) (A) and 29 of the Narcotic Drugs and Psychotropic Substances Act. The petitioner was arrested on 16.1.2024. 2 **.** The essence of the prosecution case is that: on 26.12.2023, the Detecting Officer seized ten LSD stamps weighing 0.19 grams and 4.67 grams of ganja from the conscious possession of the first accused, who was in his residence. During his interrogation, it is revealed that the 3 Bail Application No. 2490 of 2024 accused 2 and 3 are also involved in the case. It is also revealed that the financial transactions between the first accused and the third accused and it was the second accused who supplied the contraband articles to the first accused, who had frequent telephone conversations. Thus, the accused have committed the above offences. 3. Heard; Sri.V.I Rahul, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, 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. There is no material to substantiate the petitioner’s involvement in the case. The petitioner has been implicated in the crime solely on the basis of suspicion. The petitioner has been in judicial custody from 16.1.2024, the petitioner does not have any criminal antecedents and the investigation in the case is practically 4 Bail Application No. 2490 of 2024 complete. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, opposing the application. The Investigating Officer stated that it was the petitioner who supplied the contraband article to the first accused. There are incriminating materials to substantiate the petitioner’s involvement in the crime. The call records reveal that there were frequent telephone conversations between the petitioner and the first accused. Likewise, there were financial transactions between the accused 1 and 3, which was as per the instructions of the petitioner. The contraband involved in the case is of a commercial quantity. Therefore, the rigour under Sec.37 of the Act applies to the facts of the case. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 5 Bail Application No. 2490 of 2024 6. The prosecution allegation is that the Detecting Officer seized 0.19 grams of LSD stamps and 4.67 grams of ganja from the conscious possession of the first accused. The materials on record reveal that there were frequent telephone conversations between the petitioner and the first accused, and it was the petitioner who supplied the contraband to the first accused. It is also reported that there were financial transactions between the first accused and the third accused, as per the instructions of the petitioner. However, these are all matters to be investigated and decided at the time of trial. The fact remains that the contraband involved in the case is of a 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: 6 Bail Application No. 2490 of 2024 “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. 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. 7 Bail Application No. 2490 of 2024 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: “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” 8 Bail Application No. 2490 of 2024 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 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 a comprehensive consideration of the factual matrix, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the 9 Bail Application No. 2490 of 2024 seriousness, gravity, and nature of the offences alleged against petitioner, the contraband involved in the case is of a commercial quantity, and prima facie there are incriminating materials against the petitioner to establish his 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 only to be dismissed. Resultantly, the application is dismissed. sd/- sks/12.6.2024 **C.S.DIAS,JUDGE**