Kerala High Court
Hashir M.H vs State Of Kerala on 24 May, 2023
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. 3511 OF 2023
CRMC 1028/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM
CRIME NO. 1544/2022 OF ERNAKULAM TOWN SOUTH POLICE STATION
PETITIONER/ACCUSED NO.3:
HASHIR M.H
AGED 26 YEARS
S/O LATE HABEEB M.H, MUTHIRAKKATHARAMEL HOUSE, ELATHUR
VILLAGE, KOZHIKODE DISTRICT, PIN - 673303
BY ADV RASMI NAIR T.
RESPONDENTS/STATE AND INVESTIGATING OFFICER:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 THE STATION HOUSE OFFICER OF ERNAKULAM TOWN SOUTH POLICE
STATION,
ERNAKULAM DISTRICT, PIN - 682015
BY SR.PUBLIC PROSECUTOR SMT. T V NEEMA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 3511 OF 2023 2
ORDER
Dated this the 24th day of May, 2023
This is an application for regular bail, filed by the 3 rd accused
in Crime No.1544/2022 of Ernakulam Town South Police Station.
2. Heard the learned counsel for the petitioner as well as
the learned Public Prosecutor.
3. I have perused the relevant documents.
4. The prosecution allegation is that, at about 4.00 p.m. on
21.12.2022, the Sub Inspector of Police, Ernakulam South
conducted search in Room No.304 in Caprice Residency Hotel at
Panampally Nagar and recovered 52.08 grams of MDMA from the
possession of the petitioner and two others (accused in this crime).
It is alleged that, 12.79 grams of MDMA found in the pocket of the
1st accused and 24.16 grams of MDMA found in the pocket of the
2nd accused and 15.13 grams of MDMA found in the shoulder bag of
the petitioner. The further allegation is that the accused brought
the contraband from Bangalore for the purpose of sale. It is on this
premise, crime, alleging commission of offence punishable under
Section 22(c) r/w Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'
hereinafter), was registered.
5. It is submitted by the learned counsel for the petitioner
that the petitioner has been in custody from 21.12.2022 and the
contraband was found to be Methamphetamine and not MDMA. It
is also submitted that, if so, contraband seized from the petitioner,
which is confined to 15.13 grams is intermediate quantity and
therefore, the petitioner is entitled to get regular bail, after diluting
the rider under Section 37 of the NDPS Act.
6. Whereas, it is submitted by the learned Public Prosecutor
that, the total quantity of contraband seized is 52.08 grams and the
same is commercial quantity in the case of Methamphetamine also.
Therefore, it is difficult to dilute the rider under Section 37 of the
NDPS Act.
7. In this matter, the specific allegation in the prosecution is
that, the accused, in furtherance of their common intention,
hatched criminal conspiracy and in consequence of the conspiracy,
at about 4.00 p.m. on 21.12.2022, they were found in joint
possession of 52.08 grams of MDMA. Anyhow, the Chemical
Analysis Report not so far produced. Even assuming that the
contraband is Methamphetamine, then also the same is commercial
quantity.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
