## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943 BAIL APPL. NO. 9589 OF 2021**
**AGAINST THE ORDER IN SC 814/2020 OF ADDITIONAL DISTRICT COURT,**
**THRISSUR**
**CRIME NO. 1654 OF 2020 OF KODUNGALLOOR POLICE STATION, THRISSUR PETITIONER/ACCUSED NO. 4:**
YEDHU REJIPTH AGED 30 YEARS VANDEPARAMBIL HOUSE, MOOTHAKUNNAM P. O., MOOTHAKUNNAM VILLAGE, NORTH PARAVOOR, ERNAKULAM - 683516. BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH
## **RESPONDENTS/CLAIMANTS:**
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31. 2 S. I. OF POLICE KODUNGALLOOR POLICE STATION, THRISSUR - 680664. (CRIME 1654/2020).
## **OTHER PRESENT:**
P.G.MANU -SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON 10.01.2022 PASSED THE FOLLOWING:
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## **ORDER**
Dated this the 10[th] day of January, 2022
This successive application seeking bail has been filed by the petitioner/the 4[th] accused who is undergoing incarceration since 12.06.2020 in connection with Crime No. 1654 of 2020 of Kodungallur Police Station registered for the offences punishable under Sections 20(b)(ii)(c), 27(A), 8(A) read with Section 27(B) of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act).
2. The prosecution allegation is as follows:
All the accused shared the common intention to collect ganja for illegal sale and for the same the 1[st] and 2[nd] accused proceeded to Andhra Paradesh in a vehicle bearing registration No. KL-17-L-3586 with the money provided by the 3[rd] accused and collected ganja for illegal sale. The 3[rd] and the 4[th] accused waited for them at Udumalpetta, Tamil
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Nadu and transferred the ganja in a vehicle bearing No. KL52-A-3996 and the 1[st] and 3[rd] accused proceeded with the same, through Thrissur-Kondugallur road. While so, the Sub Inspector of Police, Kodungllur happened to see the vehicle at Chapara junction. Though, the police team gave indication to stop the vehicle they did not stop. So the police team chased the vehicle and intercepted it at 13.15 hrs near Pulloott bridge and searched the same and thus 75.625 kgs. of ganja which was concealed on the platform under several sacks of big onion and seized the same and thus this crime was registered against them. On the same day, at about 15 hrs, this petitioner and the 3[rd] accused were intercepted by the police officials of Irinjalakuda Police Station and seized 2 kgs. of ganja while proceeding with the lorry bearing Registration No. KL-17-L-3586 and thus another case was registered against them as Crime No. 691 of 2020 under Section 20(b)(ii)B of the NDPS Act.
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## 3. Heard both sides.
4. The learned counsel for the petitioner submits that, commercial quantity of ganja was seized from the possession of accused Nos. 1 and 2 but this petitioner has absolutely no role or connection with this case as alleged by the prosecution. He is undergoing unnecessary incarceration for more than a year in this falsely implicated case, and hence he is entitled to be released on bail is the argument of the learned counsel for the petitioner.
5. But the learned Public Prosecutor opposed the application contending that this petitioner was very much present along with the other accused right from the very beginning to collect the contraband and they proceeded with the ganja collected from Andhra Pradesh though accused Nos. 1 and 2 were travelling in vehicle No. KL-52A3996 when it was seized. But the investigation revealed that all the accused together collected the ganja from
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Andhra Pradesh and transported in the lorry bearing No. KL-17-L-3586 as per the understanding between them and the 3[rd] and 4[th] accused waited at Udumalpetta, Tamil Nadu and then the ganja was transferred to the lorry bearing No. KL-52-A-3996 brought by them and while so, the vehicle was intercepted by the police officials and thus it was seized from the possession of accused Nos. 1 and 2. The vehicle used by the accused to bring the contraband from Andhra Pradesh bearing No. KL-17-L-3586 is under the ownership of 2[nd] accused and vehicle No. KL-52-A-3996 belongs to accused No.5. So as a result of the conspiracy/understanding, the contraband was transferred to the lorry brought by this petitioner and the other accused to Tamil Nadu, from the other lorry and so this petitioner was in lorry bearing No. KL-17-L-3586. So, though the contraband article of commercial quantity was seized from the possession of accused Nos. 1 and 2, originally it was
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collected by all the accused together from Andhra Pradesh and transferred to the lorry bearing registration No. KL-52A-3996 to bring it to Kerala. The active participation and involvement of this petitioner is prima facie revealed on investigation and now the trial of the case has already started and if he is released on bail, at this point of time, that will adversely affect the smooth course of trial and hence, the application is opposed.
6. While analyzing the rival submissions, at the outset it is to be noted that commercial quantity of contraband was seized from the possession of accused Nos. 1 and 2 while they were transporting the same through ThrissurKodungallur road in the lorry bearing registration No. KL52-A-3996. But prima facie the investigation would reveal that this petitioner along with the other accused were there at Andhra Pradesh to collect the contraband article and thereafter they waited with lorry bearing No. KL-52-A-3996
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as the contraband was brought in lorry bearing registration No.KL-17-L-3586 from Andhra Pradesh and transferred to the said lorry and that lorry was intercepted by the Kodungallur police and thus the case was registered. Ofcourse, the learned counsel for the petitioner submits that there is absolutely no evidence to connect the petitioner with the present case. Prima facie, at this stage the materials indicate the involvement of this petitioner in collecting commercial quantity of contraband as well in transporting the same to Kerala for illegal sale. Now the investigation of the case is over and trial has already been started. P.W.1 was examined in part and the case now stands posted for further cross examination. The learned counsel has further argued that there is no possibility to complete the trial of the case in near future, and so he is entitled to be released on bail. Of course, 28 witnesses have been cited by the prosecution. But the prosecution may not examine all the
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witnesses to substantiate its' case. As the records prima facie reveal that this petitioner had active participation for transportation of commercial quantity of ganja in the vehicle which was seized by the police officials on 23.05.2020, the seriousness of the offence would militate against grant of bail. Moreover, the statutory embargo under Section 37 of the NDPS Act has much relevancy in the case of granting bail.
7. Interpreting the word 'reasonable grounds' in Section 37 of the NDPS Act the Apex Court in **Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798]** has
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.
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8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.
“9. … It is often said that 'an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space.' The author of Words and Phrases has quoted from Nice & Schreiber, In re to give a plausible meaning for the said word. He says
'the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined.'
It is not meant to be expedient or convenient but certainly something more than that.”
10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn of Greater Mumbai v. Kamla Mills Ltd)
11. The court while considering the application for bail with reference to Section 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.”
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8. When the case in hand is evaluated on these parameters, I could find no justification to deviate from my earlier view that if bail is granted to the petitioner, that will disrupt the smooth flow of trial of the case. It is also a fact that the petitioner is the accused in Crime No. 691 of 2020 of Irinjalakuda Police Station. So, his criminal antecedents is also revealed. Moreover, this court has already directed the court below to have a speedy trial of the case. Therefore the trial court has to expedite the trial of the case by examining the evidence extensively.
Taking into account of all these facts, I find that this petitioner, though undergoing incarceration since 12.06.2020, is not entitled to be released on bail just considering the period of detention undergone by him in custody, when so much quantity of contraband is involved. Hence, I am constrained to conclude that this petitioner is
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not entitled to be enlarged on bail before completion of the
trial of the case.
Dismissed.
Sd/SHIRCY V JUDGE
sb
