Aadil S. Haneef vs State Of Kerala
2023 Latest Caselaw 5767 Ker

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                          PRESENT

                      THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

            WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945

                                BAIL APPL. NO. 2130 OF 2023

     AGAINST THE ORDER/JUDGMENT Bail Appl. 569/2023 OF HIGH COURT OF KERALA


         Crime No.42/2023 of Kanjirappally Police Station, Kottayam,


PETITIONER/S:

                AADIL S. HANEEF
                AGED 22 YEARS
                S/O SALI K. HANEEF, SHALIMAR HOUSE, PAKISTHANKAVALABHAGOM,
                CHAMAMPATHAL KARA, VAZHOOR VILLAGE, KOTTYAM DISTRICT, PIN - 686517
                BY ADVS.
                DHANYA BABU
                M.LIJU
                NEETHU SASI
                AJAY JUEL KURIAKOSE
                RICHU THERESA ROBERT


RESPONDENT/S:

     1          STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN -
                682031
     2          STATION HOUSE OFFICER
                KANJIRAPPALLY POLICE STATION, KOTTAYAM DISTRICT, PIN - 686555
                BY ADV PUBLIC PROSECUTOR


OTHER PRESENT:

                P G MANU SRPP



    THIS BAIL APPLICATION HAVING COME UP FOR
ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 B.A. No. 2130 of 2023
                                   ..2..




                             ORDER

Dated this the 24th day of May, 2023

This is an application for regular bail filed, under Section 439

of the Criminal Procedure Code, by the petitioner, who is the

second accused in Crime No.42/2023 of Kanjirappally Police

Station, Kottayam, alleging commission of offences punishable

under Sections 22(c), 20(b)ii(A) and 29 of the Narcotic Drugs and

Psychotropic Substances Act (for short `NDPS Act' hereinafter).

2. Heard the learned counsel for the petitioner and the learned

Public Prosecutor. Perused the case diary and report of the

Investigating Officer, placed by the learned Public Prosecutor.

3. The prosecution case is that on search being done by the

police at the house of the 1st accused at 8.10 p.m on 08.01.2023,

300 ml of LSD Stamp and 1 gram of Hashish were recovered

from there and the 1st accused ran away from there. Thereafter B.A. No. 2130 of 2023 ..3..

when the police party questioned the 1st accused, after his arrest,

he informed that the petitioner herein/the 2nd accused had given

the contraband to him. Accordingly, the petitioner got arrayed as

the 2nd accused and he was arrested on 11.01.2023.

4. The learned counsel for the petitioner pressed for grant of

regular bail on the submission that the petitioner has been in

custody from 11.01.2023 and he has no criminal antecedents. It is

submitted that since the investigation requiring him in custody is

practically over, he may be released on bail.

5. Whereas the learned Public Prosecutor zealously opposed

the bail plea on the submission that the petitioner, who got

involved in a very serious crime cannot be released at the

primitive stage of investigation and the same would affect the fair

investigation of the case.

6. To be on the crux of the matter, commercial quantity of B.A. No. 2130 of 2023 ..4..

contraband was seized from the 1st accused and later on

investigation, it was found that the 2nd accused/petitioner herein

is the person who supplied the contraband. The prosecution

records, prima facie, do justify the allegations. In addition to that

the prosecution records would go to show that the petitioner was

arrayed in another crime, vide Crime No.35/2023 of

Peramangalam Police Station, alleging commission of offences

under Section 20(b)(ii)(A) of the NDPS Act. Thus this is the 2nd

crime against the petitioner registered in 2023 itself.

7. When the prosecution alleges possession of commercial

quantity of contraband, the rigour 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 B.A. No. 2130 of 2023 ..5..

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.

5. 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.

6. The Apex Court considered the meaning of 'reasonable

grounds' in the decision reported in (2007) 7 SCC 798, Union B.A. No. 2130 of 2023 ..6..

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.

7. 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 B.A. No. 2130 of 2023 ..7..

pronouncing a judgment of acquittal and recording a finding of

not guilty.

8. 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: B.A. No. 2130 of 2023 ..8..

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.

9. 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 B.A. No. 2130 of 2023 ..9..

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.

10. 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 RMV

TRUE COPY

P.A.TO JUDGE