Kerala High Court
Nishan vs State Of Kerala on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
BAIL APPL. NO. 1328 OF 2023
AGAINST THE ORDER/JUDGMENTCRMP 50/2023 OF I ADDITIONAL DISTRICT
COURT, TRIVANDRUM
PETITIONER:
NISHAN
AGED 29 YEARS
S/O NIZAR, NISHAL MANZIL, AYIROOR, VARKALA,
THIRUVANANTHAPURAM, PIN - 695141
BY ADVS.
LIJU. M.P
REVATHI R. KURUP
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
P G MANU SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1328 OF 2023
2
ORDER
Dated this the 13th day of March, 2023
This is an application for regular bail filed by the 2nd accused
in Crime No.625/2022 of Kadakkavoor Police
Station,Thiruvananthapuram.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
3. Perused the detailed report submitted by the learned
Public Prosecutor.
4. Prosecution case is that about 11:45 AM on
28.09.2022, the accused Nos.1 and 2 herein jointly possessed
320 grams of MDMA, for the purpose of sale and they were
nabbed along with the contraband in front of Mass Auditorium
near Mananakku Junction, Manamboor Village. Pursuant to
recovery, crime alleging commission of offences punishable under
Section 22(c) of the the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'
BAIL APPL. NO. 1328 OF 2023
for convenience) was registered and the same is on investigation.
5. The learned counsel for the petitioner would submit
that the petitioner who got arrayed as 2 nd accused is absolutely
innocent and he infact had given a lift to the 1 st accused without
knowing that he had been carrying contraband and therefore, the
petitioner who has been in custody from 28.09.2022, deserves
bail.
6. While opposing bail to the petitioner who involved in a
serious offence where 320 grams and 15 mg of MDMA
(commercial quantity), the learned Public Prosecutor submitted
that this is the case of red handed recovery from accused Nos. 1
and 2, therefore, the prosecution case is well established prima
facie. Since commercial quantity of contraband is involved, this
Court cannot grant bail without satisfying the conditions under
Section 37 of the NDPS Act.
7. On scrutiny of the available materials, it could be
gathered that the Sub Inspector and party found that accused
Nos.1 and 2 jointly transported 320 grams and 15 mg of MDMA
along with 3 ATM cards, 3 mobile phones, two black purses and
BAIL APPL. NO. 1328 OF 2023
Indian currency worth Rs.1290/-. While accused Nos.1 and 2
were jointly transporting the same on a scooter bearing
registration No. KL 81-1838 from Varkala to Attingal and they
were nabbed near Mass Auditorium, Manakkaku Junction. Since
the prosecution case is that complicity of the petitioner is well
made out along with the 1st accused and therefore, the rigor under
Section 37 of the Act would squarely apply and this Court cannot
grant bail without satisfying the twin conditions provided therein.
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
BAIL APPL. NO. 1328 OF 2023
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
BAIL APPL. NO. 1328 OF 2023
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
BAIL APPL. NO. 1328 OF 2023
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 Cri.LJ 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
BAIL APPL. NO. 1328 OF 2023
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 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 on bail.
Therefore, this application for regular bail at the instance of the
petitioner must fail.
Hence the petition stands dismissed.
sd/-
A. BADHARUDEEN
JUDGE
sab
BAIL APPL. NO. 1328 OF 2023
APPENDIX OF BAIL APPL. 1328/2023
PETITIONER ANNEXURES
Annexure1 TRUE COPY OF THE FIR IN CRIME NO.
625/2022 OF KADAKKAVOOR POLICE STATION,
THIRUVANANTHAPURAM
Annexure2 ORIGINAL OF THE ORDER DATED 18.01.2023
PASSED IN CRL.M.P NO.50/2023 ON THE FILE
OF ADDL.SESSIONS COURT-I,
THIRUVANANTHAPURAM
