Haneefa vs State Of Kerala
2023 Latest Caselaw 4822 Ker

            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. 2327 OF 2023
     CRIME NO.105/2022 OF PERINTHALMANNA POLICE STATION,
                            MALAPPURAM
  AGAINST THE ORDER/JUDGMENTCRMP 954/2022 OF SPECIAL COURT
               (ATROCITIES AGAINST SC/ST), MANJERI
PETITIONER/1ST ACCUSED:

            HANEEFA, AGED 40 YEARS
            S/O.BEERANKUTTY, @ERAD,
            OLAAKARA, TIRURANGADI, MALAPPURAM,
            KERALA, PIN - 676306.
            BY ADVS.
            BEJOY JOSEPH P.J.
            BONNY BENNY


RESPONDENT/STATE:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM, PIN - 682031.

            BY SENIOR PUBLIC PROSECUTOR SMT. T.V.NEEMA


     THIS   BAIL    APPLICATION   HAVING   BEEN   FINALLY   HEARD   ON
30.03.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:
 B.A.No.2327/2022                   2




                     A. BADHARUDEEN, J.
             ================================
                        B.A.No.2327 of 2023
           ================================
                Dated this the 13th day of April, 2023


                               ORDER

This is an application for regular bail filed by the 1 st accused in

Crime No.105 of 2022 of Perinthalmanna Police Station,

Malappuram, under Section 439 of the Code of Criminal Procedure.

2. Heard the learned counsel for the petitioner and the

learned Public Prosecutor in detail. Perused the case diary and

report of the Investigating Officer placed by the learned Public

Prosecutor.

3. In this case the prosecution alleges commission of offences

punishable under Section 20(b)(ii)C r/w 29 of the Narcotic Drugs

and Psychotropic Substances Act (`NDPS Act' for short hereinafter).

The prosecution case is that at about 14.45 hours on 28.01.2022,

accused 1 to 3 jointly transported 45.900 kg. of ganja in an

Ambulance bearing Registration No.KL 42 H 3673 after hatching

conspiracy between them. Accordingly, the accused were nabbed

along with the contraband. Pursuant to recovery and arrest, crime

alleging the above offences was registered.

4. The learned counsel for the petitioner submitted that the

petitioner is innocent and he has no criminal antecedents. He also

would submit that the petitioner has been in custody from

28.01.2022 onwards and trial has not yet started even though his

under trial custody now reached 1 year and 2 months. Therefore, the

petitioner may be released on bail, since trial could not be

materialized within a reasonable time.

5. It is submitted by the learned counsel for the petitioner

further that the petitioner is a person suffering from kidney disease

and he has placed an Isotope Renogram report to substantiate the

same.

6. Whereas the learned Public Prosecutor strongly opposed

grant of bail on the submission that commercial quantity of

contraband was seized from the petitioner and therefore this Court

cannot grant regular bail to the petitioner, without satisfying the twin

conditions provided under Section 37 of the NDPS Act.

7. In this connection, 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,

assumes significance. 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.

8. 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."

9. 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."

10. 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 capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials."

11. 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 pretty long time, at

least more than one year, (say for eg. fourteen and half months in the

instant case).

(3) the impossibility of trial within a reasonable time, at least

more than one year (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 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.

12. In this matter, the petitioner has been in custody from

28.01.2022 and now one year and 2 ½ months have been elapsed and

trial has not yet started. The petitioner has 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 petitioner. In addition to that, the quantity of the contraband

he possessed is only 45.900 kg. So, by applying the ratio of the Apex

Court decisions referred above, I am of the view that the petitioner

can be enlarged on bail satisfying the rigour under Section 37 of the

NDPS Act.

13. Accordingly, this petition stands allowed and the petitioner

can be enlarged on bail on the following conditions:

i. Accused/petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned.

ii. Accused/petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. He 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/petitioner shall not leave India without prior permission of the jurisdictional court.

iv. The petitioner shall surrender his passport, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter.

v. Accused/petitioner 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/