Sivaprasad. P.S vs State Of Kerala
2023 Latest Caselaw 2674 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
                      BAIL APPL. NO. 9985 OF 2022
            CRIME NO.853 OF 2021 OF ANGAMALY POLICE STATION
PETITIONER/ACCUSED NO.2 (IN CUSTODY) (ARRESTED ON 5.06.2021):

            SIVAPRASAD. P.S.
            AGED 30 YEARS
            S/O NARAYANAN, VADAKKEVELI HOUSE, NEAR DISTILLERY
            VARANADU, KOTHAMANGALAM VILLAGE, CHERTHALA TALUK,
            ALAPPUZHA DISTRICT, PIN - 688524
            BY ADV LIFFY P. FRANCIS


RESPONDENT/STATE:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, HIGH COURT P O, ERNAKULAM, PIN - 682031


            BY SR. PUBLIC PROSECUTOR SMT.T V NEEMA



     THIS    BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 9985 OF 2022               2



                                    ORDER

Dated this the 1st day of March, 2023.

This is an application for regular bail, filed by the 2 nd accused in Crime

No.853/2021 of Angamaly Police Station, where prosecution alleges

commission of offences punishable under Sections 8(c), 20(b)(ii)(C), 25 and

29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,

'the NDPS Act' hereinafter).

2. Heard the learned counsel for the petitioner as well as the

learned Public Prosecutor.

3. I have perused the case diary materials along with the report of

the Investigating Officer.

4. The prosecution allegation is that, on 5.6.2021, when the de

facto complainant and his party were on law and order duty, at Karukutti

boarder check post, 2.018 kg MDMA was seized, while checking a pick up

van, bearing Registration No.KL-40/N/5444, driven by the 2 nd accused, along

with 1st accused. Accordingly, crime, alleging commission of the above

offences was registered and the same is on investigation.

5. The learned counsel for the petitioner, who argued at length, to

convince this Court, the innocence of the petitioner, pointed out some sort of

difference in the quantity of contraband on the assertion that, initially, as per

the seizure mahazar, contraband was stated as 2.018 kg and when the First

Information Report was registered, the same was increased by 2.189 kg and

when charge was filed, the contraband was stated tobe 1.994 kg. According

to the learned counsel, the difference in the weight of contraband, is a

reason to hold that there is tampering of evidence. It is argued further that,

the petitioner has no knowledge or role in the occurrence and he, being a

person, engaged in driving his pick up van and when asked to run for rent, as

requested by the 1st accused, he went along with him during covid 19 period,

in times of financial crisis. He did not know that the 1st accused carried

contraband. Therefore, the petitioner is absolutely innocent. In such

circumstances, taking note of the custody of the petitioner from 5.6.2021 and

progress of investigation, he is liable to be released on bail.

6. The case diary materials, as such, has been placed by the

learned Public Prosecutor and it is submitted that, the 5 th accused herein

transferred Rs.3,00,000/- (Rupees Three Lakh only) in favour of accused

Nos.3 and 4, for the purpose of transporting contraband and also given car

bearing Registration No.KL-23/K/1434, for the purpose of their travel.

Thereafter, accused Nos.1 and 2, in prosecution of their common object,

started journey from 1.6.2021 in the pick up van and there were constant

calls between accused Nos.1,2, 3 and 4, as on 2.6.2021. Thereafter, they

stayed at Beehive Inn lodge, near Cholinganalloor Narayanaswami 3 rd Street,

Kanjipuram. The room booked by the 7th accused for accused Nos.1 to 4.

The further allegation is that, on 4.6.2021, accused Nos.3,4 and 7 reached

the residence of the 6th accused and purchased the contraband and stored in

the pick up van, where the 2nd accused/petitioner herein, who was travelled.

It is pointed out further that, during the period of recovery as well as for the

period between 1.6.2021 to 5.6.2021, there were constant calls between the

accused and particularly, 285 calls in between the 1 st and 2nd accused, apart

from constant calls between the other accused. It is submitted by the

learned Public Prosecutor further that, though initially, MDMA was the

contraband alleged to be seized, as per the chemical analysis report, the

same was found Methamphetamine Hydrochloride. However, the quantity is

beyond 50 grams, therefore, the contraband involved in this case, as of now,

also is commercial quantity and therefore, the bar under Section 37 of the

NDPS Act would apply, while granting bail.

7. While alleying the rival contentions, it is to be noted that, the

petitioner raised plea of innocence on the ground that, he happened to be

the driver of the pick up van, without knowledge of transport of contraband.

Further, he had run the vehicle for rent only to transport vegetables as

directed by the 1st accused, during the covid-19 financial crisis prevailed.

But, the prosecution has a specific case as to transport of contraband by the

2nd accused after sharing common intention with the 1st accused, as argued

in detail, by the learned Public Prosecutor, as extracted hereinabove.

8. It is to be noted that, as per the prosecution records, accused

Nos.1 and 2 started journey in the pick up van as on 2.6.2021 and after

staying in Beehive Inn lodge, the contraband was transported on 5.6.2021

and in between the relevant period, there were constant calls in between

accused Nos.1 and 2 as well as the other accused. The call details were

collected by the Investigating Officer. Since the quantity of contraband is

around 2 kgs of Methamphetamine Hydrochloride, the absolute innocence,

as canvassed by the learned counsel for the petitioner, cannot be addressed

at this stage and the same can be raised during trial, in accordance with law.

The materials available in this case, in the form of case diary and report,

would go to show that, the allegation as to commission of offences by the

accused herein, including the petitioner is well made out, prima facie and in

such a case, the rigor under Section 37 of the NDPS Act would 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. Accordingly, this bail application stands dismissed.

Since it is submitted by the learned counsel for the petitioner that the

case may be disposed of, at the earliest and for which, a direction is

necessary, I am inclined to direct the learned Special Judge, dealing with this

matter, which is pending as S.C.No.1150/2021 before the Sessions Court,

Ernakulam, to expedite the trial, as early as possible, at any rate, within a

period of 6 months from the date of production of a copy of this order.

Sd/-

A. BADHARUDEEN JUDGE

Bb

//TRUE COPY//

PA TO JUDGE