Muhammed Shamil Rasheed.K vs State Of Kerala
2023 Latest Caselaw 5774 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. 2392 OF 2023

  AGAINST THE ORDER/JUDGMENTCRMC 1019/2022 OF SPECIAL COURT (NDPS ACT CASES),

                                         VADAKARA
          Crime No. 544/20222 of Pantheerankavu Police Station, Kozhikode.


PETITIONER/S:

                MUHAMMED SHAMIL RASHEED.K
                AGED 25 YEARS
                KILIYAM MANNIL RIPPON.P.O, WAYANAD DISTRICT., PIN - 673577
                BY ADV ZUBAIR PULIKKOOL


RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN -
                682031
                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. 2392 of 2023
                                   ..2..




                              ORDER

Dated this the 24th day of May, 2023

This is an application for regular bail filed by the 1st

accused in Crime No. 544/20222 of Pantheerankavu Police

Station, Kozhikode.

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

learned Public Prosecutor. Perused the case diary along with

detailed report submitted by the Investigating Officer.

3. The prosecution case is that at about 7.55 hours on

15.10.2022 based on information received by the Investigating

Officer to the effect that contraband was kept in Room No. 366

L of Oceanic apartment, Palazhi, at 8.30 hours search was

conducted at the room. On search, the bag kept at the Room

where from the money purse of one Muhammed Shamil

Rasheed (the petitioner herein) was recovered, it was found that B.A. No. 2392 of 2023 ..3..

31.130 gram of MDMA, 0.450 gram LSD Stamp, 0.780 gram of

MDMA Extasy Pills, 2.980 gram hashish oil, 11.050 gram ganja.

Accordingly the same was seized and the petitioner who got

arrayed as 1st accused was arrested.

4. The learned counsel appearing for the petitioner would

submit that the recovery in so far as the MDMA is concerned, is

found to be not correct in view of the chemical analysis report

dated 25.01.2023. Since it was reported the chemical examiner

that the contraband send for chemical analysis, naming it as

MDMA, found as not MDMA, but methamphetamine.

Accordingly, the learned counsel would submit that now the

quantity of MDMA come down to intermediate quantity and

therefore the rider under Section 37 would not attract. The

counsel would submit that the petitioner is a first time offender

and who has been in custody for the last 222 days.

5. On perusal of the mahazar pertaining to the recovery, it B.A. No. 2392 of 2023 ..4..

could be noticed that even transporting 31.130 gram of

methamphetamine, altogether the contraband seized from the

accused still remains as commercial quantity and therefore the

rider under Section 37 of the NDPS Act squarely applied. This

court cannot grant regular bail without diluting 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 B.A. No. 2392 of 2023 ..5..

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

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 B.A. No. 2392 of 2023 ..6..

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

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 B.A. No. 2392 of 2023 ..7..

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 B.A. No. 2392 of 2023 ..8..

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

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 B.A. No. 2392 of 2023 ..9..

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