Kerala High Court
Rashad vs State Of Kerala on 13 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
BAIL APPL. NO. 3849 OF 2022
CRIME NO.112/2022 OF MALAPPURAM POLICE STATION, MALAPPURAM
PETITIONER/ACCUSED NO.1:
FASIL
AGED 32 YEARS
S/O. ABDUL GAFORR, PADIPPURA HOUSE, THARIS POST,
KARUVARAKUNDU, MALAPPURAM DISTRICT, PIN - 676523
BY ADV P.K.ANIL(K/000587/1989)
RESPONDENTS/STATE:
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031.
2 THE STATION HOUSE OFFICER, MALAPPURAM
MALAPPURAM POST, MALAPPURAM DISTRICT - 676505.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
PUBLIC PROSECUTOR SRI S.SANGEETH RAJ
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10.03.2023
ALONG WITH B.A.NO.5099/2022, THE COURT ON 13.04.2023
DELIVERED THE FOLLOWING:
B.A.Nos.3849 & 5099 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
BAIL APPL. NO. 5099 OF 2022
CRIME NO.112/2022 OF MALAPPURAM POLICE STATION, MALAPPURAM
AGAINST THE ORDER/JUDGMENTCMP 656/2022 OF SPECIAL COURT
(ATROCITIES AGAINST SC/ST), MANJERI
PETITIONER/ACCUSED NO.2:
RASHAD, AGED 28 YEARS
S/O MUHAMMAD HUSSAIN,
KURUKKAN HOUSE, THARIH P.O.,
MAMPATTA, KARUVARAKUNDU,
MALAPPURAM DISTRICT - 676523.
BY ADV Sojan Micheal Micheal
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
2 STATION HOUSE OFFICER
MALAPPURAM POLICE STATION,
MALAPPURAM DISTRICT-676519,
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
PUBLIC PROSECUTOR SRI S.SANGEETH RAJ
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
10.03.2023 ALONG WITH BAIL.APPLI.NO.3849/2022, THE COURT ON
13/04/2023 DELIVERED THE FOLLOWING:
B.A.Nos.3849 & 5099 of 2022 3
"C.R"
A. BADHARUDEEN, J.
================================
B.A.Nos.3849 of 2022
and
5099 of 2022
================================
Dated this the 13th day of April, 2023
ORDER
These are bail applications filed by accused 1 and 2 in Crime
No.112 of 2022 of Malappuram Police Station, Malappuram, under
Section 439 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioners and the
learned Public Prosecutor in detail. Perused the case diary and
report of the Investigating Officer placed by the learned Public
Prosecutor.
3. The prosecution case is that at about 22.05 hours on
16.02.2022, when the Sub Inspector of Police, Malappuram Police
Station, was engaged in vehicle checking, it was found that ganja
was transporting in a TATA Tiago car bearing Registration No.KL
71 F 6107. Accordingly, the vehicle was searched and 22.125 kg.
of ganja was seized. Pursuant to recovery, accused Nos.1 and 2
were arrested and crime alleging commission of offences punishable
under Section 20(b)(ii)C and 29 of the Narcotic Drugs and Psychotropic
Substances Act (`NDPS Act' for short hereinafter) was registered.
4. The learned counsel for the petitioner pressed for grant of bail
on the submission that the petitioners have no criminal antecedents and
they have been in custody from 16.02.2022 onwards on the allegation
that they had possessed 22.125 kg. of ganja, just above intermediate
quantity. It is submitted by the learned counsel for the petitioners that
even though investigation of this crime was completed, trial not yet
started and there is no likelyhood to complete the trial within a
reasonable time. Further, the petitioners have no criminal antecedents.
Therefore, the petitioners may be released on bail, diluting the rigour
under Section 37 of the NDPS Act.
5. Whereas the learned Public Prosecutor strongly opposed
grant of bail on the submission that commercial quantity of
contraband was seized from the petitioners and in such a case, this
Court cannot grant regular bail to the petitioners, without satisfying
the twin conditions provided under Section 37 of the NDPS Act. In
this case, red-handed recovery of 22.125 kg. of ganja could be
seen, prima facie. Therefore, definitely, the rigour under Section
37 would apply.
6. In this connection, the learned counsel for the petitioners
placed an unreported decision of the Apex Court in Special Leave
Appeal (Crl.) No.6690/2022 [Dheeraj Kumar Shukla v. The State
of Uttar Pradesh] dated 30.05.2022. It is submitted by the learned
counsel for the petitioners that in the said case, the Apex Court
diluted the rigour under Section 37 of the NDPS Act on the ground
that accused had no criminal antecedents and also taking note of
the custody of the accused therein for a period of 2 ½ years.
Therefore, applying the same ratio, Section 37 of the NDPS Act
may be diluted in this case and the petitioners, who are first time
offenders, may be released on bail.
7. In para.3 of the above order, the Apex Court held as under:
"3. xxx xxx xxx It is true that the quantity recovered from the
petitioner is commercial in nature and the provisions of Section 37 of the Act
may ordinarily be attracted. However, in the absence of criminal antecedents
and the fact that the petitioner is in custody for the last two and a half years,
we are satisfied that the conditions of Section 37 of the Act can be dispensed
with at this stage, more so when the trial is yet to commence though the
charges have been framed."
8. In a recent decision of the Apex Court reported in [(2023)
1 Supreme 670], Rajuram v. State of Bihar, the Apex Court
granted bail to an accused involved in possession of commercial
quantity of contraband. In the said case, the Apex Court diluted the
rigour under Section 37 of the NDPS Act on the ground that the
petitioner/accused therein had no criminal antecedents and he had
been in custody from 28.12.2017 onwards. In para.6 it has been
held as under:
"6. It is true that trial has commenced and out of 8 witnesses, 2
witnesses have reportedly been examined by the Trial Court.
However, the conclusion of trial will still take some time. The
petitioner has no criminal antecedents. The period which the
petitioner has already spent in custody is sufficient to exempt the
rigours of Section 37 of Narcotic Drugs and Psychotropic Substances
Act, 1985."
It is true that in Dheeraj Kumar Shukla v. The State of Uttar
Pradesh (supra), the Supreme Court diluted the rigour under
Section 37 in a case involving commercial quantity of narcotic
substance on the ground that the accused had no criminal
antecedents and he was in custody for 2 ½ years and also taking
note of the fact that the trial could not be materialized within a
reasonable time. Somehow, similar is the observation of the Apex
Court in Rajuram v. State of Bihar's case (supra). In a recent judgment
rendered by the Apex Court, in SLP (Crl) 915/2023, [2023 LiveLaw
(SC) 260, OnLine] Mohd Muslim @ Hussain v. State (NCT of Delhi),
the Apex Court considered a case involving commercial quantity of
contraband. The facts of the case as stated in paragraph 17 is as
under:
"17. The facts in this case reveal that the recovery of
ganja was made on 28.09.2015, from the four co-accused,
including Nitesh Ekka. The present appellant was arrested at
the behest, and on the statement of this Nitesh Ekka. The
prosecution has relied on that statement, as well as the
confessional statement of the present appellant; in addition, it
has relied on the bank statements of Virender Singh @ Beerey,
who allegedly disclosed that money used to be transferred to
the appellant. As against this, the prosecution has not
recovered anything else from the appellant; its allegation that
he is a mastermind, is not backed by any evidence of extensive
dealing with narcotics, which would reasonably have surfaced.
The prosecution has not shown involvement of the appellant, in
any other case. Furthermore, he was apparently 23 years of
age, at the time of his arrest. It is an undisputed fact that two
co-accused persons (who also, were not present at the time of
raid and from whom no contraband was recovered) - the
accused (Virender Singh @ Beerey) who allegedly transferred
money to the appellant's account as payment for the ganja, and
the accused (Nepal Yadav @ Tony Pahalwan) from whom the
original insurance papers and registration certificate of the
car from which contraband was seized, was recovered - have
both been enlarged on bail. The appellant has been in custody
for over 7 years and 4 months. The progress of the trial has
been at a snail's pace : 30 witnesses have been examined,
whereas 34 more have to be examined."
9. While adjudicating the bail plea at the instance of the
accused in the above case, the Apex Court discussed the manner in
which the conditions provided under Section 37 of the NDPS Act
can be considered within the constitutional parameters and it was
held in paragraph Nos.19, 20 and 21 as under:
"19. A plain and literal interpretation of the conditions
under Section 37 (i.e., that Court should be satisfied that the
accused is not guilty and would not commit any offence)
would effectively exclude grant of bail altogether, resulting in
punitive detention and unsanctioned preventive detention as
well. Therefore, the only manner in which such special
conditions as enacted under Section 37 can be considered
within constitutional parameters is where the court is
reasonably satisfied on a prima facie look at the material on
record (whenever the bail application is made) that the
accused is not guilty. Any other interpretation, would result in
complete denial of the bail to a person accused of offences
such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one,
where the court would look at the material in a broad manner,
and reasonably see whether the accused's guilt may be proved.
The judgments of this Court have, therefore, emphasized that
the satisfaction which courts are expected to record, i.e., that
the accused may not be guilty, is only prima facie, based on a
reasonable reading, which does not call for meticulous
examination of the materials collected during investigation (as
held in Union of India v. Rattan Malik [(2009) 2 SCC 624].
Grant of bail on ground of undue delay in trial, cannot be said
to be fettered by Section 37 of the Act, given the imperative of
Section 436A which is applicable to offences under the NDPS
Act too (ref. Satender Kumar Antil supra). Having regard to
these factors the court is of the opinion that in the facts of this
case, the appellant deserves to be enlarged on bail.
21. Before parting, it would be important to reflect
that laws which impose stringent conditions for grant of bail,
may be necessary in public interest; yet, if trials are not
concluded in time, the injustice wrecked on the individual is
immeasurable. Jails are overcrowded and their living
conditions, more often than not, appalling. According to the
Union Home Ministry's response to Parliament, the National
Crime Records Bureau had recorded that as on 31st December
2021, over 5,54,034 prisoners were lodged in jails against
total copacity of 4,25,069 lakhs in the country. Of these
122,852 were convicts; the rest 4,27,165 were undertrials."
10. Epitomizing the parameters laid down by the Apex
Court in the decisions herein above discussed, the following
parameters clubbed together can be considered to dilute the rigour
under Section 37 of the NDPS Act:
(1) the accused should not have any criminal antecedents.
(2) the accused has been in custody for a long time, at least a
period more than one year (say for eg. about fourteen months in the
instant case).
(3) the impossibility of trial within a reasonable time (for this
purpose, the Court granting bail should ensure that trial could not
be completed at least within a period of six months).
Yet another aspect to be added in the list, in my view, is the
quantity of the contraband. That is to say, when the quantity of
contraband is something just above the intermediate quantity and
the same is not a huge or sizable quantity, the same also can be
considered after satisfying the above 3 parameters stated herein
above, for diluting the rigour under Section 37 of the NDPS Act.
11. In this matter, the petitioners have been in custody from
16.02.2022 and now one year and 1 ½ months have been elapsed
and trial has not yet started. The petitioners have no criminal
antecedents. Further, there is no possibility to complete the trial
within a reasonable time. Thus the three parameters can be found
in favour of the petitioners. In addition to that, the quantity of the
contraband they possessed is only 22.125 kg. which is just above
the intermediate quantity. So, by applying the ratio of the Apex
Court decisions referred above, I am of the view that the petitioners
can be enlarged on bail satisfying the rigour under Section 37 of the
NDPS Act.
12. Accordingly, these petitions stand allowed and the
petitioners can be enlarged on bail on the following conditions:
i. Accused/petitioners shall be released on bail on their
executing bond for Rs.50,000/- (Rupees Fifty Thousand Only)
each with two solvent sureties each for the like amount to the
satisfaction of the jurisdictional court concerned.
ii. Accused/petitioners shall not intimidate the witnesses or
tamper with evidence. They shall co-operate with the investigation
and shall be available for trial. They shall visit the Investigating
Officer on every Monday in between 9 a.m and 12 noon for a
period of two months and also appear before the Investigating
Officer as and when directed.
iii. Accused/petitioners shall not leave India without prior
permission of the jurisdictional court.
iv. The petitioners shall surrender their passports, if any,
within 7 days from the date of their release, before the trial court. If
they have no passports, they shall file an affidavit in this regard on
the date of execution of the bond or within 3 days thereafter.
v. Accused/petitioners shall not involve or indulge in any
other offence during the currency of bail and any such event, if
reported or came to the notice of this Court, the same alone shall be
a reason to cancel the bail hereby granted.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
