Vishnu Prasad vs State Of Kerala
2023 Latest Caselaw 4403 Ker

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                      THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

          WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945

                             BAIL APPL. NO. 2501 OF 2023
                  Crime No.625/2022 of Kadakkavoor Police Station,
                             Thiruvananthapuram.

PETITIONER/S:

                VISHNU PRASAD
                AGED 28 YEARS
                VISHNU PRASAD, AGED 28 YEARS, S/O GIREESH, RESIDING AT MRA-96,
                ANCHANEYAM, PARUTHIVILA, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM
                DISTRICT, PIN - 695013
                BY ADVS.
                J.VISHNU
                ANU BALAKRISHNAN NAMBIAR
                G.J.RAJMOHAN


RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, THROUGH
                STATION HOUSE OFFICER, KADAKKAVOOR POLICE STATION,
                THIRUVANANTHAPURAM DISTRICT, PIN - 695306

OTHER PRESENT:

                T V NEEMA SR PP



    THIS BAIL APPLICATION HAVING COME UP FOR
ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 B.A. No. 2501 of 2023
                                    ..2..




                               ORDER

Dated this the 12th day of April, 2023

This is the second application for regular bail, filed by

the 3rd accused in Crime No.625/2022 of Kadakkavoor

Police Station, Thiruvananthapuram. The earlier bail

application, B.A.No. 1036 of 2023 was dismissed on

17.02.2023 as under:-

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 B.A. No. 2501 of 2023 ..3..

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 3rd accused

brought contraband from the 4th accused and handed over

the same to accused Nos.1 and 2. Accordingly, now 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 B.A. No. 2501 of 2023 ..4..

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

3rd accused brought the contraband from the 4th 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 Prosecutor, the 3rd accused

is the main link between the 4th accused and accused Nos.1

and 2, to transport contraband and he is the middle man in B.A. No. 2501 of 2023 ..5..

the illegal drug deal in Thiruvananthapuram.

7. On perusal of the available materials, the

Investigating Officer found to have collected the materials

connecting the 3rd accused and the same includes the

telephone calls and whats app messages, while alleging that,

it was the 3rd accused, who brought the contraband from the

4th 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 B.A. No. 2501 of 2023 ..6..

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 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.

B.A. No. 2501 of 2023 ..7..

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 that the accused is not guilty of the B.A. No. 2501 of 2023 ..8..

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 B.A. No. 2501 of 2023 ..9..

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) 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.A. No. 2501 of 2023 ..10..

(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, where learned Public

Prosecutor opposes grant of bail, this Court must satisfy that

there are reasonable grounds for believing that the accused B.A. No. 2501 of 2023 ..11..

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.

In fact, there is nothing substantiated to reconsider the

regular plea again. Therefore, for the same reason this bail

application is also dismissed.

Sd/-

A. BADHARUDEEN JUDGE RMV

TRUE COPY

P.A.TO JUDGE