Kerala High Court
Shan. M.S vs State Of Kerala on 1 March, 2023
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. 1395 OF 2023
CRIME NO.51 OF 2022 OF AMARAVILA EXCISE RANGE OFFICE,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT IN CMP 3287/2022 OF I ADDITIONAL
DISTRICT COURT, TRIVANDRUM
PETITIONER/1ST ACCUSED:
SHAN. M.S,
AGED 23 YEARS
S/O. MURALEEDHARAN, YAVANIKA,
PULLUTHOTTAM, VANCHIYOOR, P.O, ALAMCODE,
THIRUVANANTHAPURAM- ., PIN - 695102
BY ADVS.
P.ANOOP (MULAVANA)
THANIMA S.
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADV.T V NEEMA, SR.PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1395 OF 2023
2
ORDER
Dated this the 1st day of March, 2023
This is an application for regular bail filed under Section
439 of the Code of Criminal Procedure by the 1 st accused in
crime No.51/2022 of Amaravila Excise Range Office,
Thiruvananthapuram, where accused alleged to have
committed offences punishable under Sections 22(c) and 29 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'the NDPS Act' for convenience).
2. Heard the learned counsel for the petitioner as well
as the learned Public Prosecutor.
3. I have perused the case diary along with relevant
materials placed by the learned Public Prosecutor as well as
the learned counsel for the petitioner.
4. The prosecution case is that at about 8.25 pm on
10.11.2022, the Circle Inspector of Excise Range,
Neyyattinkara was conducting vehicle checking at Amaravila
RTO Check post, it was found that the accused herein, who
BAIL APPL. NO. 1395 OF 2023
were travelled in KA-01-AM-7666 vehicle, possessed 75 gram
of MDMA, 5 ATM cards, Election ID card and PAN card. While
recording the confession statement of the 1st accused, he had
stated that the 3rd accused handed over the contraband and
on further investigation, it was revealed that all the accused
jointly transported the contraband. On this premise, the
prosecution alleges commission of offences punishable under
Sections 22(c) and 29 of the NDPS Act. The contraband was
seized and the accused was arrested from the spot.
6. While pressing for regular bail, the learned counsel
for the petitioner highlighted that the petitioner is innocent and
he has no criminal antecedents. His custody from 10.11.2022
also is pointed out by the learned counsel for the petitioner.
7. Whereas the learned Public Prosecutor strongly
opposed bail in a case involving commercial quantity of
MDMA, where Section 37 of the NDPS Act interdicts grant of
regular bail.
BAIL APPL. NO. 1395 OF 2023
8. On perusal of the prosecution records, it could be
noticed that 75 gram of MDMA and other items were
recovered from the conscious possession of the petitioner
himself. Thus, the prosecution case is well made out, prima
facie.
9. In so far as grant of regular bail to the accused who
was nabbed on the allegation of possession of commercial
quantity of contraband, Section 37 of the NDPS Act would
squarely 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,
BAIL APPL. NO. 1395 OF 2023
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
BAIL APPL. NO. 1395 OF 2023
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:
BAIL APPL. NO. 1395 OF 2023
(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 Union of
India v. Jitentra Giri (2023 Crl.LJ 799)
BAIL APPL. NO. 1395 OF 2023
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. On evaluation of the prosecution materials on par
with the arguments tendered by the learned counsel for the
petitioner and the learned Public Prosecutor, this Court cannot
satisfy that there are reasonable grounds for believing that the
petitioner is innocent and he will not commit any offence while
BAIL APPL. NO. 1395 OF 2023
on bail. Therefore application for regular bail at the instance
of the petitioner must fail.
Hence this petition stands dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
BAIL APPL. NO. 1395 OF 2023
APPENDIX OF BAIL APPL. 1395/2023
PETITIONER ANNEXURES
Annexure1 THE TRUE COPY OF THE ORDER IN CMP
3287/2022 OF THE ADDITIONAL SESSIONS
COURT, THIRUVANANTHAPURAM DATED 23-12-
