Kerala High Court
Prajosh P vs State Of Kerala on 15 February, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
BAIL APPL. NO. 256 OF 2024
CRIME NO.706/2023 OF Nallalam Police Station, Kozhikode
AGAINST THE ORDER/JUDGMENT CRMP 1089/2023 OF SPECIAL COURT (NDPS
ACT CASES), VADAKARA
PETITIONER/S:
PRAJOSH P,
AGED 44 YEARS
S/O IMBICHIKUTTYI,KALATHILTHODI
(HOUSE),NALLOOR,FEROKE,KOZHIKODE DIST, PIN - 673631
BY ADV M.DEVESH
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
OTHER PRESENT:
pp smt nima jacob
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
15.02.2024, ALONG WITH Bail Appl..207/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 256 & 207 OF 2024
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
BAIL APPL. NO. 207 OF 2024
CRIME NO.706/2023 OF Nallalam Police Station, Kozhikode
AGAINST THE ORDER/JUDGMENT CRMP 1183/2023 OF SPECIAL COURT
(NDPS ACT CASES), VADAKARA
PETITIONER/S:
ABHILASH,
AGED 26 YEARS
S/0 MURALEEDHARAN, OLASSERIPARAMBA FAROOK
COLLEGE(PO), KOTTAMANGALAM, KOZHIKODE, PIN - 673632
BY ADVS.
T.K.SANDEEP
ARJUN SREEDHAR
ARUN KRISHNA DHAN
ALEX ABRAHAM
SWETHA R.
HARIKRISHNAN P.B.
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
15.02.2024, ALONG WITH Bail Appl..256/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 256 & 207 OF 2024
3
COMMON ORDER
The applications are filed under Section 439 of the
Code of Criminal Procedure, 1973, by the accused 1 and 2
in Crime No.706/2023 of the Nallalam Police Station,
Kozhikode, registered against the accused (three in
number) for allegedly committing the offences punishable
under Section 22(c) read with Section 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (in short,
'NDPS Act'). The petitioners were arrested on 28.09.2023.
2. The essence of the prosecution case is that:
around 13 hours on 28.09.2023, the accused were found in
conscious possession of 100.1 grams of MDMA which was
transported in a motor car bearing No.KL-11-BE-7585
through Meenchanda-Cheruvannur road. The accused
have conspired together and possessed the contraband
article in violation of the provisions of the Act. Thus, the
accused have committed the above offences.
3. Heard; Sri.M.Devesh and Sri.T.K.Sandeep, the
learned counsel appearing for the petitioners and
Smt.Nima Jacob, the learned Senior Public Prosecutor.
BAIL APPL. NO. 256 & 207 OF 2024
4. The learned counsel appearing for the petitioners
in unison submitted that the petitioners are absolutely
innocent of the accusation leveled against them. They have
been falsely implicated in the crime. The petitioners are in
judicial custody since 28.09.2023. The investigation in
the case is practically complete and recovery has been
effected. Hence, the petitioners' further detention is not
necessary. In addition to the above submission, the learned
counsel appearing for the 2nd accused submitted that the
2nd accused is only a Driver by profession. He had gone on
a trip to Bangalore as requested by the 1 st accused. The 2nd
accused was unaware that any contraband was allegedly
kept in the camera. The 2nd accused's mother has lodged
a complaint before the Police against his false implication
in the crime. Hence, the application may be allowed.
5. The learned Public Prosecutor vehemently
opposed the application. She contended that the
investigation in the case is in progress. The petitioners
were found in conscious possession of a commercial
quantity of the contraband article. Nonetheless, she
BAIL APPL. NO. 256 & 207 OF 2024
conceded to the fact that in the chemical analysis that was
conducted, it has been certified that the contraband is not
MDMA but methamphetamine. Nonetheless, since the
quantity is of 100.1 grams, the same is of a commercial
quantity. Therefore, the rigour under Section 37 of the Act
applies. Hence, the application may be dismissed.
6. The prosecution allegation is that the accused 1 to
3 were found in conscious possession of 100.1 grams of
MDMA which has been transported in the car in which the
petitioners traveled. It has turned out that the contraband
is not MDMA, but methamphetamine. But, still the
contraband is of a commercial quantity. Therefore, the
rigour under Section 37 of the Act applies.
6. Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, regulates the grant of bail in cases
involving offences under the Act. It is profitable to extract
Section 37, which reads as follows:
"37. Offences to be cognizable and non-bailable.--(1)
Notwithstanding anything contained in the Criminal
Procedure Code, 1973 (2 of 1974),-- (a) every offence
punishable under this Act shall be cognizable; (b) no person
BAIL APPL. NO. 256 & 207 OF 2024
accused of an offence punishable for offences under Section
19 or Section 24 or Section 27-A 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
Criminal Procedure Code, 1973 (2 of 1974) or any other law
for the time being in force on granting of bail."
7. A plain reading of the above provision demonstrates
that a person accused of an offence under Sections 19, 24
and 27-A of the Act and also involving commercial quantity
shall not be released on bail unless the court is satisfied
that there are reasonable grounds to believe that the
accused is not guilty and is not likely to commit any
offence while on bail. Therefore, the power to grant bail to
a person accused of committing an offence under the Act
is subject to provisions contained under Sec.439 of the
Code and parameters referred to above and on the
accused satisfying the twin conditions under Sec.37 of the
BAIL APPL. NO. 256 & 207 OF 2024
Act.
8. While interpreting 'reasonable grounds' prescribed
under Section 37 of the Act, the Honourable Supreme
Court in Union of India v. Shiv Shanker Kesari [(2007)
7 SCC 798] held as follows:
"7. The expression used in Section 37(1)(b)(ii) is "reasonable
grounds". The expression 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".
9. In Union of India v. Mohd. Nawaz Khan [(2021)
10 SCC 100], the Honourable Supreme Court, after
referring to a host of judicial precedents on Section 37 of
the Act, observed that:
"23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting
bail is whether there are reasonable grounds to believe that
the accused has not committed an offence and whether he is
likely to commit any offence while on bail. Given the
seriousness of offences punishable under the NDPS Act and
in order to curb the menace of drug-trafficking in the
country, stringent parameters for the grant of bail under the
BAIL APPL. NO. 256 & 207 OF 2024
NDPS Act have been prescribed". 10. It is also well-settled
that in addition to applying the rigour under Section 37 of
the Act, the courts are also bound to follow the general
parameters under Section 439 of the Code, while considering
a bail application.
10. In Prasanta Kumar Sarkar v. Ashis Chatterjee
[(2010) 14 SCC 496], the Honourable Supreme Court has
laid down the broad parameters for Courts while dealing
with bail applications by holding as follows:
"9.xxx xxx xxx However, it is equally incumbent upon the
High Court to exercise its discretion judiciously, cautiously
and strictly in compliance with the basic principles laid down
in a plethora of decisions of this Court on the point. It is well
settled that, among other circumstances, the factors to be
borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence; (ii)
nature and gravity of the accusation; (iii) severity of the
punishment in the event of conviction; (iv) danger of the
accused absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being influenced;
and (viii) danger, of course, of justice being thwarted by
grant of bail".
After bestowing my anxious consideration to the fact,
BAIL APPL. NO. 256 & 207 OF 2024
the materials placed on record, the rival submissions made
across the Bar and also the law referred to in the afore
cited decisions and on comprehending the nature,
seriousness and gravity, the accusation leveled against the
petitioners, that the investigation in the case is in progress
and that the contraband is of a commercial quantity, I do
not find any reasonable ground to hold that the petitioners
have not committed the offences alleged against them and
that they are not likely to commit the offence of a similar
nature, if they are enlarged on bail. Therefore, I hold that
the rigour under Section 37 of the Act applies to the facts
and circumstances of the case. The application is meritless
and is only to be rejected.
Resultantly, the applications are dismissed.
Sd/-
C.S.DIAS, JUDGE
rkc/15.02.24
BAIL APPL. NO. 256 & 207 OF 2024
APPENDIX OF BAIL APPL. 207/2024
PETITIONER ANNEXURES
Annexure I TRUE COPY OF THE CERTIFICATE DATED
09.10.2023 ISSUEDBYTHEMANAGER OF CENTURY
TRADING COMPANY
Annexure II TRUECOPY OF THE COMPLAINT DATED 10.10.2023
SUBMITTED TO DISTRICT POLICECHIEF
KOZHIKODE
Annexure III TRUE COPY OF THE RECEIPT DATED 10.10.2023
ISSUED BY THEOFFICEOFTHE DISTRICT POLICE
CHIEF ACKNOWLEDGING THE RECEIPT OF
THECOMPLAINT
Annexure IV TRUE COPYOF THEORDER DATED 26.10.2023 IN
CRL.M.P.NO.1027/2023 ON THEFILESOF
THESPECIAL JUDGE (N.D.P.S. ACT CASES),
VATAKARA
Annexure V FAIR COPY OF THE ORDER DATED13.12.2023 IN
CRL.M.P.NO.1183/2023 ON THE FILES OF
THESPECIAL JUDGE (N.D.P.S. ACT CASES),
VATAKARA
Annexure VI TRUE COPY OF THE ULTRA SOUND EXAMINATION
REPORT ISSUED FROM ASWINI POLY CLINIC
DATED 27.10.2023 OF THE WIFE OF
THEPETITIONER
BAIL APPL. NO. 256 & 207 OF 2024
APPENDIX OF BAIL APPL. 256/2024
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF FIR AND FIS DATED 28/09/2023
ON THE FILES OF NALLALAM POLICE STATION
Annexure 2 TRUE COPYOF ORDER DATED 17/11/2023 IN CRL
MP 1089/2023 ON THE FILES OF SPECILA COURT
NDPS VADAKARA
