Kerala High Court
Adithya Krishnan vs State Of Kerala on 25 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
BAIL APPL. NO. 5566 OF 2023
AGAINST THE ORDER/JUDGMENT SC 650/2023 OF I ADDITIONAL
DISTRICT COURT, ERNAKULAM
CRIME NO.612/2023 OF ERNAKULAM NORTH POLICE STATION,
ERNAKULAM
PETITIONER/ACCUSED NO.4:
ADITHYA KRISHNAN
AGED 23 YEARS, S/O KRISHNA KUMAR,
THADIKKARAN BUILDING, MANJUMMEL, ELOOR VILLAGE,
ERNAKULAM, PIN-683501.
BY ADVS.
LAL K.JOSEPH
P.MURALEEDHARAN (THURAVOOR)
T.A.LUXY
SURESH SUKUMAR
KOYA ARAFA MIRAGE
ANZIL SALIM
SANJAY SELLEN
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 THE STATION HOUSE OFFICER
ERNAKULAM TOWN NORTH POLICE STATION,
ERNAKULAM, PIN-682018, PIN - 682018.
PUBLIC PROSECUTOR SRI M P PRASANTH
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
17.08.2023, THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING:
B.A.No.5566/2023 2
A. BADHARUDEEN, J.
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B.A.No.5566 of 2023
================================
Dated this the 25th day of August, 2023
ORDER
This is the third bail application for regular bail, filed by the
4th accused in Crime No.612/2023 of Ernakulam Town North
Police Station.
2. Heard the learned counsel for the petitioner as well as
the learned Public Prosecutor.
3. I have perused the relevant records.
4. The prosecution allegation is that, based on a secret
information to the effect that, four persons engaged in possession
of MDMA in Room No.317 of Sidra Pristine Hotel, SRM Road,
Ernakulam, the police party conducted search and on search, 294
grams of MDMA was seized in the presence of accused Nos.1 to 4.
Thereafter, they were arrested and crime, alleging commission of
offence punishable under Section 22(c) r/w Section 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,
'the NDPS Act' hereinafter), was registered.
5. The learned counsel for the petitioner would submit that
the petitioner is innocent and he was nabbed without any
justification. The learned counsel would submit that the 2 nd and 3rd
accused are neighbourhood friends of the 4 th accused (petitioner)
and the petitioner is a student, studying in Munnar Catering
College. It is also submitted that, nothing recovered from the
conscious possession of the 4th accused. The learned counsel for
the petitioner argued that even though after investigation, final
report has been filed, as per the final report also, the allegation
against the 4th accused is not established and the final report as well
as the seizure cum recovery mahazar would go to show that the 1 st
accused is the person, who dealt with the contraband, which was
recovered from Sidra Pristine Hotel, SRM Road, Ernakulam, when
the police party conducted search. It is argued further that since the
role of the 4th accused could not be established as per the final
report, he is liable to be released on bail.
6. The learned Public Prosecutor submitted that the
specific allegation of the prosecution itself is that accused 1 to 4,
after sharing common intention, as a joint venture, transported 294
grams of MDMA in a car bearing Registration No.KL 62B 3022
and kept the same in Sidra Pristine Hotel, for the purpose of sale
and they were intercepted by the police jointly along with the
contraband. Since the prosecution allegation is specific on the
point that accused 1 to 4 committed the above offences, the
argument at the instance of the learned counsel for the petitioner
that the petitioner is innocent, as per the final report, is absolutely
meritless. It is also submitted that there is no reason to read the
complicity of the petitioner/4th accused, in segregation, to hold that
he is innocent to dilute the rigor under Section 37 of the NDPS Act.
7. Initially the bail application of the petitioner was dismissed as
observed in paragraphs 8 to 16 of B.A.No.3659/2023 as under:
"8. Available materials do not suggest anything to hold that
the petitioner is innocent, in a case involving red-handed recovery of
commercial quantity of contraband from a Hotel room, on the basis of a
secret information. In such case, the rigor under Section 37 of the
NDPS Act, would squarely apply.
9. 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 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.
10. 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.
11. 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 offence charged.
12. 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.
13. 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 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.
14. On a plain reading of Section 37(1) (b) and 37(1)(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.
15. Thus, 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 is not guilty of the offence and he will not likely to commit
any offence while on bail.
16. 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."
8. Even though the learned counsel for the petitioner
attributes complicity of the 1st accused alone in this crime, as per
the prosecution records, it is emphatically clear that the prosecution
received an information as to possession of contraband by accused
1 to 4 jointly, after transporting the same in a car bearing Reg.No.
KL 62B 3022 and on the basis of the said information when search
was conducted, 294 grams of MDMA was seized from the joint
possession of accused 1 to 4, accordingly they were nabbed and
this crime was registered. On reading the final report as a whole,
the allegations against accused 1 to 4 is specific to the effect that
they have jointly transported and possessed 294 grams of MDMA
and thereby committed the above offences. In such a case, there is
no reason to hold that the petitioner is innocent, as canvassed by
the learned counsel for the petitioner.
8. Therefore, the rider under Section 37 would apply in the
matter of grant of bail as I observed in the earlier bail application as
narrated above. Therefore, this application must fail.
Accordingly, the Bail Application stands dismissed.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF BAIL APPL. 5566/2023
PETITIONER'S ANNEXURES
Annexure A1 THE TRUE COPY OF THE CERTIFICATE ISSUED
BY THE PRINCIPAL OF MUNNAR CATERING
COLLEGE DATED 03.04.2023
Annexure A2 THE TRUE COPY OF THE ORDER DATED
29/04/23 IN CRL.M.C 1057/2023 OF THE
SESSIONS COURT (VACATION COURT)
ERNAKULAM DIVISION
Annexure A3 THE COPY OF THE ORDER DATED 26.05.2023
IN BAIL APPL. NO. 3659/2023 OF THE HIGH
COURT OF KERALA
Annexure A4 THE CERTIFIED COPY OF THE ORDER OF THE
HON'BLE DISTRICT AND SESSION COURT
ERNAKULAM IN CRL M.P. 2274 OF 2023 IN SC
650 OF 2023 DATED 09.06.2023
