State Of Kerala Rep. By The Public ... vs Shince Babu
2023 Latest Caselaw 6376 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
   TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945

                   CRL.MC NO. 813 OF 2023
  AGAINST THE ORDER/JUDGMENT CRL.MP 3861/2022 OF DISTRICT &
                  SESSIONS COURT, ALAPPUZHA

PETITIONER/RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REP. BY THE PUBLIC PROSECUTOR.
           HIGH COURT OF KERALA, ERNAKULAM.

           BY ADVS.
           PUBLIC PROSECUTOR
           ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
           ADDL. STATE PUBLIC PROSECUTOR(AG-28)

RESPONDENT/PETITIONER/4TH ACCUSED:

           SHINCE BABU
           AGED 23 YEARS
           SHINCE BABU
           S/O BABU .P.C.
           PARACKAL HOUSE,VELLAD.P.O.MAVUMCHAL,
           TALIPARAMBA,KANNUR DISTRICT., PIN - 670571

           BY ADVS.
           S.Shanavas Khan Shahul Hameed
           S.INDU(K/002856/1999)
           KALA G.NAMBIAR(K/515/2006)


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.06.2023, ALONG WITH Crl.MC.755/2023, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
 CRL.MC NO. 813 OF 2023                2




                                     ORDER

This petition is filed by the State challenging the order dated

20.09.2022 in Crl. M.P. No. 3861/2022 passed by the learned Sessions Judge,

Alappuzha, granting regular bail to the respondent herein.

2. Short facts are as under:

The prosecution allegation is that on 11.02.2022 at about 2.55 PM, the

1st Accused was found travelling in a private bus bearing Registration

No.KL-38-2825 from Cherthala Bhagom to Arukkutty possessing 138.750 gms

of MDMA. Based on source information, he was arrested, and the contraband

articles were seized. A crime was registered as FIR No.110/2022 at

Poochakkal Police Station u/s.22(c) and 29 of NDPS Act against accused Nos.

1 and 2. The 1st accused is alleged to have disclosed that the 4th respondent

is his close friend, and they had procured the contraband from Bangalore with

the assistance of the rest of the accused. The investigation which was

conducted disclosed the involvement of the others and they were roped in as

accused.

3. An application for regular bail was preferred by the 4th accused.

The learned Sessions Judge took note of the rival contentions and observed

as follows:

"6. From a perusal of the report, it can be seen that huge quantity of MDMA is allegedly recovered in this case from the possession of the first accused. It emerges that, this case was detected on the basis of a tip-off received by the S.1. of Police, Poochackal Police station. The quantity of contraband seized in this case is commercial quantity. It is alleged that it was the second accused, who aided the first accused to purchase the contraband seized in this case. The specific allegation against the petitioner, who is arrayed as the fourth accused in this case is that, he along with the third accused had sold the contraband involved in this case to the first accused. From the case diary it emerges that, already sufficient materials are collected by the police regarding the complicity of the petitioner in the commission of the offence and in the conspiracy hatched between the accused persons in this case. There is specific allegation that there was constant contact between the accused persons over phone and there were monetary transactions between them.

7. In the report submitted by the SHO, it is specifically stated that, on perusal of the bank account details of the fourth accused, it was revealed that between 17.08.2021 and 10.02.2022, money has been transferred to the account of the third accused from the account of the petitioner herein on more than 21 occasions. Therefore, the petitioner cannot escape from the liability solely for the reason that no contraband is seized from him. However, the contraband is actually

seized from the possession of the first accused. When compared with first accused, the role played by the petitioner in the alleged commission of the offence stands on a lower pedestal. Undisputedly, no contraband is seized from the possession of the petitioner. The petitioner is seen arrested in this case on 11.04.2022 and since then he has been in custody. The petitioner is seen already granted in police custody for the purpose of investigation. No criminal antecedents are seen pointed out against the petitioner. Further detention of the petitioner in judicial custody appears to be unwarranted for the progress of the investigation in this case."

Holding so, bail was granted to the petitioner.

4. Sri. C.K. Suresh, the learned Public Prosecutor, submitted that

the order granting bail is perverse and against the principles laid down by the

Apex Court. According to the learned public prosecutor, the learned Sessions

Judge failed to take note of the mandate and the limitations under Section 37

(1)(b)(ii) of the Act, 1985 with regard to the grant of bail involving

commercial quantities of narcotic drugs and substances. It is submitted that

the court granting bail is bound to consider whether there are reasonable

grounds to believe that the accused has not committed an offence and

whether he is likely to commit any offence while on bail. The legislature has

placed such an embargo taking note of the seriousness of the offences

punishable under the NDPS Act and in order to curb the menace of drug

trafficking in the country. It is submitted that the only reason stated by the

learned Sessions Judge while granting bail to the respondent is that no

contraband was seized from his possession. Relying on the judgment

rendered by the Apex Court in Union of India v. Rattan Mallik1 and Union

of India through Narcotics Control Bureau, Lucknow v. Muhammed

Nawaz Khan2, it is submitted that a finding of the absence of possession of

the contraband on the person of the respondent does not absolve the court of

the level of scrutiny required under Section 37(1)(b)(ii) of the Act, 1985.

5. In response, it is submitted by the learned counsel appearing for

the respondent that the prime accused from whom contraband was seized

was granted statutory bail owing to the failure of the prosecuting agency to

file the final report within the statutory period. The 3rd accused has also

been granted bail by the Court of Sessions, and the same has not been

challenged. It is pointed out that the petitioner had undergone incarceration

for a considerable period, and the learned Sessions Judge was satisfied that

[2009 (2) SCC 624]

[2021 (10) SCC 100]

his continued incarceration was unwarranted in the facts and circumstances.

According to the learned counsel, bail, once granted, may not be cancelled

merely for the reason that the learned Sessions Judge has not reproduced

verbatim the wordings of section 37 of the Act, 1985. The learned counsel

urges that the right to liberty is a fundamental right under Article 21 of the

Constitution of India, and in the facts and circumstances, the grievances

projected in the petition filed by the State are no reason to cancel the bail.

Finally, it is submitted that the application challenging the grant of bail was

preferred after much delay, which is yet another reason why no interference is

warranted.

6. I have carefully considered the submissions and have gone

through the records.

7. Before adverting to the contentions, it would be relevant to note

that the seizure involved in the instant case is 138.750 gms of MDMA.

Admittedly, the above quantity falls in the category of commercial quantity.

The reason given by the learned Sessions Judge for the grant of bail is the

long period of incarceration undergone by the accused and the fact that no

contraband was seized from his possession. However, the learned Sessions

Judge, while issuing the order, has not taken note of Section 37 of the NDPS

Act and he has not entered into a finding with regard to the level of

satisfaction that was required, in case the court was otherwise inclined to

grant bail to the accused.

8. It would be apposite to refer to Section 37 of the NDPS Act at

this juncture.

"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 27-A 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." (emphasis supplied)

9. A reading of Section 37 of the Act would make it clear that the

jurisdiction to grant bail is circumscribed by the provisions of Section 37 of the

NDPS Act. Bail can be granted in case the court is satisfied that there are

reasonable grounds for believing that the accused is not guilty of such offence

and that he is not likely to commit any offences while on bail. It is the

mandate of the legislature and the same is required to be followed. (See

State of Kerala v. Rajesh3.

10. In Union of India v. Ram Samujh [Union of India v. Ram

Samujh4, the Apex Court has laid down broad parameters to be followed

while considering the application for bail moved by the accused involved in

the offenses under the NDPS Act.

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be

[2020 (12) SCC 122]

[(1999) 9 SCC 429]

borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 ] as under:

'24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.'

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

11. In Rajesh, (supra), the State of Kerala had challenged the order

granting bail passed by this Court to an accused without complying with the

mandate under Section 37 of the Act. It was held as follows in paragraph No.

19 to 21 of the judgment.

19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations

contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37

of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.

12. In Union of India v. Shiv Shanker Kesari5, the Apex Court

had occasion to observe that under Section 37 of the Act, though the court is

called upon the same if there are reasonable grounds, for believing that the

accused is not guilty and record its satisfaction about the existence of such

grounds, the court is not required to consider the matter as if it is

pronouncing a judgment of acquittal and recording a finding of not guilty.

13. The principles laid above would reveal that the scheme of Section

37 is that the exercise of power to grant bail is not only subject to the

limitations contained under Section 439 of the Code but also subject to the

limitation placed by Section 37, which commences with a non-obstante

clause. The first condition is that the prosecution must be given an

opportunity to oppose the application, the second is that the Court must be

satisfied that there are reasonable grounds for believing that he is not guilty

of such an offence, and the third is that the court should be satisfied that the

accused is not likely to commit any offence while on bail. Unless all these

[(2007) 7 SCC 798]

conditions are satisfied, the prohibition in the grant of bail shall operate. The

court, while considering the application for bail with reference to Section 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.

14. I have already extracted the order passed by the learned

Sessions Judge. All that is mentioned by the learned Sessions Judge is that

he has undergone a substantial period of incarceration and he is not a person

with criminal antecedents. However, the learned Sessions Judge has failed to

record a finding as mandated under section 37 of the NDPS Act, which is a

sine qua non for granting bail to the accused in a case involving commercial

quantity.

15. I also find that the learned Sessions Judge was persuaded by the

fact that no contraband was seized from the possession of the accused. The

question whether the absence of recovery of contraband from the possession

of the accused could be taken as a reason for the grant of bail was considered

by the Apex Court in Md. Nawaz Khan (supra). Answering this question,

the Apex Court had occasion to observe as under:

28. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624] , a two-Judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the "possession" of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court.

29. In line with the decision of this Court in Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624], we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.

16. The learned Sessions Judge ought to have noted in the light of

the principles above that a finding of the absence of possession of the

contraband on the person of the respondent does not absolve it of the level of

scrutiny required under Section 37 (1)(b)(ii) of the NDPS Act. As the learned

Sessions Judge has overlooked the crucial mandate under Section 37 of the

Act, 1985, this Court cannot sustain the impugned order. In that view of the

matter, this petition will stand allowed. The order granting bail to the

respondent is set aside. The respondent shall surrender forthwith.

17. It would be open to the respondent to file a fresh application for

regular bail before the learned Sessions Judge. The learned Sessions Judge

shall consider all attendant facts, including the fact that accused Nos. 1 and 3

are on bail and shall pass fresh order by complying with the mandate under

Section 37 of the Act, 1985.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

PS/avs

APPENDIX OF CRL.MC 813/2023

PETITIONER ANNEXURES

Annexure1 TRUE COPY OF FIR IN CR.NO 110/2022 DATED 11.02.2022

Annexure2 THE REPORT DATED 11.04.2022 FILED BY THE INVESTIGATING OFFICER BEFORE THE LEARNED SESSIONS COURT.

Annexure3        TRUE COPY OF THE FINAL REPORT IN CRIME
                 NO.110/2022 OF POOCHAKKAL POLICE STATION.

Annexure4        THE CERTIFIED COPY OF THE ORDER DATED
                 20.09.2022 IN CRL.M.P. NO 3861/2022.