Kerala High Court
Debati Majhi vs State Of Kerala on 24 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
BAIL APPL. NO. 1119 OF 2023
AGAINST THE ORDER IN CRMC 4928/2022 OF ADDITIONAL DISTRICT
COURT (ADHOC) III, PALAKKAD
CRIME NO.3/2022 OF RAILWAY POLICE STATION, PALAKKAD
PETITIONER/ACCUSED NO.6:
DEBATI MAJHI
AGED 42 YEARS
D/O.MADURA MALIK, GUNJIMA, MADURA, ADAVA,
GAJAPATHI, ODISHA, PIN - 761217.
BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
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
14.02.2023, THE COURT ON 24.02.2023 DELIVERED THE
FOLLOWING:
B.A.No.1119/2023 2
A.BADHARUDEEN, J.
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B.A.No.1119 of 2023
================================
Dated this the 24th day of February, 2023
ORDER
6th accused in Crime No.3/2022 of Railway Police Station,
Shornur, Palakkad, seeks the relief of regular bail in this petition
filed under Section 439 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioner as well as
the learned Public Prosecutor. Perused the case diary as such
placed by the learned Public Prosecutor.
3. The prosecution allegation is that at 12.00 hours on
10.02.2022, when train No.22642 was at platform No.3 of
Palakkad Railway Station, the accused were found in possession
of 46.686 Kg. of Ganja against the prohibition contained in the
Narcotic Drugs and Psychotropic Substances Act (`NDPS Act' for
short hereinafter) and accordingly they were nabbed red-
handedly. Thereafter, crime alleging commission of offences
punishable under Sections 22(b)(ii)(C) and 29 of the NDPS Act
was registered and the same is on investigation.
4. While pursuing regular bail to the petitioner, who is
the 6th accused in the above crime, the learned counsel for the
petitioner pointed out the custody of the petitioner from
10.02.2022. It is submitted further that the daughter of the
petitioner is a person with disability and he has placed reliance on
Annexure-1, to establish the same.
5. Whereas the learned Public Prosecutor submitted that
the complicity of the petitioner is on par with the other accused
and in a case involving commercial quantity of contraband, this
Court cannot grant bail without diluting the rider under Section
37 of the NDPS Act. The learned Public Prosecutor also
submitted that since charge sheet also has been filed and the
matter is pending in Sessions Court, Palakkad, trial can be
expedited keeping the custody of the petitioner.
6. In this matter, the contraband seized from the custody of
the accused, including the petitioner, is a commercial quantity. In
such cases, merely because of the fact that the petitioner's
daughter is disabled, the rider under Section 37 of the NDPS Act,
cannot be diluted.
7. It is pertinent to note that 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.
8. 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.
9. 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.
10. 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.
11. 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]. Latest
decision on this point is [2023 CriLJ 799], Union of India v.
Jitentra Giri.
12. 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.
13. On evaluation of the prosecution materials on par with
the arguments tendered by the respective counsel for the
petitioners and the learned DSGI, this Court cannot satisfy that
there are reasonable grounds for believing that the petitioners are
innocent and they will not commit any offence while on bail.
Therefore applications for regular bail at the instance of the
petitioners must fail.
Hence the petition stands dismissed.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF BAIL APPL. 1119/2023
PETITIONER'S ANNEXURES
Annexure1 TRUE COPY OF THE UNIQUE DISABILITY ID
OF JANANI MAJHI.
Annexure2 TRUE COPY OF THE ORDER DATED 24.01.2023
IN CRL.M.C.NO.4928/2022 BEFORE THE
COURT OF ADDITIONAL SESSIONS JUDGE-III,
PALAKKAD.
