Kerala High Court

Arun vs State Of Kerala on 16 March, 2021

                                                              'C'R'
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE ASHOK MENON

   TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                      Bail Appl..No.1585 OF 2021

CRIME NO.1118/2020 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha


PETITIONER/S:

                ARUN
                AGED 24 YEARS
                ARCHANA BHAVAN, THITTAMEL, CHENGANNUR P.O.,
                ALAPPUZHA
                689121

                BY ADVS.
                SRI.T.H.ARAVIND
                SRI.T.RAMPRASAD UNNI
                SRI.S.M.PRASANTH
                SHRI.G.RENJITH
                SMT.R.S.ASWINI SANKAR
                SRI.K.RAMAKUMAR (SR.)

RESPONDENT/S:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031

2 STATION HOUSE OFFICER AGED 45 YEARS THE STATION HOUSE OFFICER, ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA DISTRICT

R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

SRI.SANTHOSH PETER SR PP

THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON 16.03.2021 ALONG WITH Bail Appl..1977/2021 PASSED THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ASHOK MENON

TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

Bail Appl..No.1977 OF 2021

CRIME NO.1118/2020 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha

PETITIONER/S:

ANANTHU KUMAR AGED 24 YEARS ULLAS BHAVANAM, KARAKKAD P.O, CHENGANNUR, ALAPPUZHA NORTH, ALAPPUZHA 689504

BY ADV. SRI.P.THOMAS GEEVERGHESE

RESPONDENT/S:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031

R1 BY PUBLIC PROSECUTOR

THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.03.2021,, THE COURT ON 16.03.2021 ALONG WITH Bail Appl..1585/2021 PASSED THE FOLLOWING:

BA Nos.1585/2021 & 1977/2021

'C'R' COMMON ORDER

[ Bail Appl..1585/2021, Bail Appl..1977/2021 ]

Dated, this the 16th day of March 2021

Applications for regular bail under Section 439 of Cr.P.C.

2. The applicant in B.A No. 1585/2021 is the 2nd

accused while the applicant in B.A. No. 1977/2021 is the 3rd

accused in Crime No.1118/2020 of Alappuzha North Police

Station, for having allegedly committed offences punishable

under Section 20(b) (ii) (C) of the Narcotic Drug and

Psychotropic Substance Act, 1985.

3. The prosecution case, in brief, is that on 16.11.2020

on receiving a secret information about the movement of BA Nos.1585/2021 & 1977/2021

drugs, the Sub Inspector of Police attached to Alappuzha North

Police Station, Sri.Tolson P. Joseph intimated his superior

officer, the DYSP, and proceeded to intercept an Innova car

bearing registration No.KL-03-Y-6776. There were three

persons in the car. They were searched in accordance with law,

nothing was recovered from their body, but the dickey of the

car contained two bags concealed under the carpet and on

inspection of that, it contained 24.560 kgs of ganja, a

commercial quantity. The contraband was seized and the

persons travelling in the car were arrested and arrayed as

accused. The contraband was allegedly being brought from

places like Arkkavalley in Andhra Pradesh, Coimbatore and

Bangalore.

BA Nos.1585/2021 & 1977/2021

4. The second accused states that he was arrested not

from Alappuzha, but from Thrissur. He was not present in the

vehicle at the time of seizure. He was neither the owner of the

vehicle. He has no criminal antecedents. His bail application

filed before the Session's Court Alapuzha, was dismissed.

5. The third accused states that he is a cook in Cafe de

Arabia, Ernakulam. He was returning for his work from

Alappuzha and had requested the 2nd accused, who is known

to him for a gratuitous lift in the car. Accordingly, he travelled

in the car as a gratuitous passenger and he did not know about

the ganja concealed inside the car. He submits that he is totally

unaware of the transportation of ganja and has nothing to do

with it, and hence not in conscious possession of the BA Nos.1585/2021 & 1977/2021

contraband. He too has no criminal antecedents and therefore,

seeks bail. This is his second application for bail. His earlier

application, B.A. No. 607/2021, was dismissed by the court.

6. Heard the learned Senior Counsel Sri K. Ramakumar

for the second accused and Adv. Sri P. Thomas Geeverghese

for the third accused. The learned Public Prosecutor, Sri.

Santhosh Peter, opposed the applications with all vehemence.

7. The learned Senior Counsel Sri Ramkumar submits that

the first accused has already been granted bail by a different

Bench of this Court vide Order in B.A.No. 520/2021, and hence

similarly placed second accused is also entitled to bail. The

learned counsel Sri.Thomas appearing for the third accused,

refers to the granting of bail to the first accused as a change in BA Nos.1585/2021 & 1977/2021

circumstances to seek bail in his successive application for

bail.

8. It is further pointed out by the learned counsel

appearing for the third accused that even though the FIR and

the FI statement indicate that the detecting officer is the Sub

Inspector, Sri Tolson P. Joseph, attached to the Alappuzha

North Police Station, the remand report which is produced

indicates that Sri.K.P. Vinod, Inspector of the Alappuzha North

Police Station is the detecting officer. This discrepancy is a

vital flaw in the prosecution case. I had the opportunity to

discuss in great detail this aspect pointed out by the counsel

and had overruled his objection. In this successive application

for bail, it may not be appropriate to reconsider the points BA Nos.1585/2021 & 1977/2021

which has already been decided by this court. An accused has

right to make successive applications for grant of bail. But, the

Court entertaining such subsequent bail applications has a

duty to consider the reasons and grounds on which the earlier

bail applications were rejected. In such cases, the Court also

has a duty to record what are the fresh grounds which

persuade it to take a view different from the one taken in the

earlier applications (See Kalyan Chandra Sarkar v. Rajesh

Ranjan, [2004 KHC 754 : AIR 2004 SC 1866]).

9. The learned Senior Counsel has relied on the decision

of the Apex Court in Union of India v. K.A. Najeeb [2021(1)

KLD 344(SC)] in support of his argument that presence of

statutory restrictions in the NDPS Act per se does not oust BA Nos.1585/2021 & 1977/2021

ability of Constitutional Courts to grant bail. I have gone

through the decision of the Apex Court. The statutory

restrictions in granting bail under Section 43-D (5) of the

Unlawful Activities (Prevention) Act, 1967 ("UAPA") was being

considered. The trial Court had in that case, granted bail to the

under-trial accused, who was absconding and his case split up

while trial had proceeded and concluded against the remaining

accused. He was remanded on his apprehension at a later point

in time, and was in detention for more than five years as under

trial. There were 276 witnesses to be examined. Charges were

framed only on 27/11/2020. Thirteen co-accused who had

faced trial in the parent case, were convicted and none of them

were given a sentence of more than eight years' rigorous BA Nos.1585/2021 & 1977/2021

imprisonment. It can therefore be legitimately expected that if

found guilty, this accused too would receive a sentence within

the same ballpark. Given that two-third of such incarceration is

already complete, it appeared that the accused has already

paid heavily for his acts of fleeing from justice. It is under such

circumstances that the accused therein was granted bail. The

situation here is totally different. Section 43D(5) of UAPA is

comparatively less stringent than S.37 of the NDPS Act. Unlike

in NDPS Act, where the competent Court needs to be satisfied

that there are reasonable grounds to believe that the accused

is not guilty and that he is unlikely to commit another offence

while on bail; there is no such provision under the UAPA, which

merely provides another possible ground for competent Court BA Nos.1585/2021 & 1977/2021

to refuse bail, in addition to the well-settled considerations

like gravity of offence, possibility of tampering with evidence,

influencing the witnesses or chance of the accused evading

trial by absconsion etc;( see K.A.Najeeb Supra) .

10. The Apex Court has in Union of India v. Merajuddin.

[1999 KHC 3934 : 1999 (6) SCC 43] while considering an

appeal over granting of bail by the High Court ignoring the

mandate of S.37 NDPS act observed thus:

"3. The respondent is accused of an offence under the NDPS Act, 1985. The High Court appears to have completely ignored the mandate of S.37 of the Narcotic Drugs and Psychotropic Substances Act while granting him bail. The High Court overlooked the prescribed procedure. That was not proper.

We, therefore, allow this appeal and set aside the impugned order of the High Court and BA Nos.1585/2021 & 1977/2021

cancel the bail granted to the respondent."

In Union of India v. Ram Samujh and Another [1999 KHC

1542 : 1999 (9) SCC 429] also the importance of considering

the mandate under S.37 NDPS Act is reiterated as thus:

"5. The jurisdiction of the court to grant bail is circumscribed by the provision of S.37 of the NDPS Act. It can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed."

11. The Hon'ble Supreme Court had an opportunity to

consider another appeal from this High Court granting bail to

an accused ignoring the rigour of S.37 of the NDPS Act, in BA Nos.1585/2021 & 1977/2021

State of Kerala Etc. v. Rajesh Etc.. [2020 (1) KHC 557] and held

thus:

"20. The scheme of S.37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S.439 of the CrPC, but is also subject to the limitation placed by S.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.

21. The expression "reasonable grounds"

means something more than prima facie grounds. It contemplates substantial probable BA Nos.1585/2021 & 1977/2021

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 S.37 that in addition to the limitations provided under the CrPC, or any other law for thetime being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

22. We may further like to observe that the learned Single Judge has failed to record a finding mandated under S.37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act. "

12. Coming to the argument regarding entitlement of

the applicants on the grounds of parity in granting of bail to BA Nos.1585/2021 & 1977/2021

the first accused, it is observed that the Bench which decided

that bail application did not consider the rigour and the

implications under Section 37(1) (b) (ii) of the NDPS Act, and a

plethora of precedents of the Apex Court on the point. Hence

the finding of this Court in B.A.No. 520/2021 is per incuriam,

and the applicants cannot seek any benefit based on that

order. This concept is well explained in a catena of decisions

of the Apex Court. I would refer to a couple of them.

13. In Punjab Land Development and Reclamation

Corpn. Ltd. v. Presiding Officer, Labour Court, [(1990) 3 SCC

682 : 1991 SCC (L&S) 71], the binding nature of precedents is

discussed, and held as thus:

"40. We now deal with the question of per BA Nos.1585/2021 & 1977/2021

incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd. v. State of Bihar [(1955) 2 SCR 603 : AIR 1955 SC 66 : (1955) 6 STC 446] , it was held that the words of Article 141, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. "

In V. Kishan Rao v. Nikhil Super Speciality Hospital , [(2010) 5

SCC 513 : (2010) 2 SCC (Civ) 460 ], it was observed thus : BA Nos.1585/2021 & 1977/2021

"54. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered per incuriam. This concept of per incuriam has been explained in many decisions of this Court. Sabyasachi Mukharji, J. (as his Lordship then was) speaking for the majority in A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] explained the concept in the following words : (SCC p. 652, para 42) "42. ... 'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.""

14. Having anxiously considered the entire facts and

circumstances of this case and the submissions made on either BA Nos.1585/2021 & 1977/2021

side, I find that on facts, the applicants were caught red-

handed while transporting commercial quantity of ganja.

Whether A3 was only a gratuitous traveller, or whether A2 was

apprehended from Thrissur and framed in this case, are all

matters of evidence which can be determined only during trial.

The rigour under Section 37(1) (b) (ii) of the NDPS Act would be

squarely attracted and the twin conditions require that there

must be reasonable grounds to believe that the applicants are

not guilty, and that they will not be getting involved in offence

of similar nature during bail.