Kerala High Court

Suryamurugan vs State Of Kerala on 20 June, 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 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
                        BAIL APPL. NO. 2384 OF 2024
    CRIME NO.1/2022 OF PALAKKAD EXCISE RANGE OFFICE, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.431 OF 2022 OF DISTRICT
COURT & SESSIONS COURT, PALAKKAD
PETITIONER/2ND ACCUSED :

            SURYAMURUGAN
            AGED 20 YEARS
            S/O.MURUGAN, CHAVADI VILLAGE, OORU DESHAM, KOOLI LINE,
            D BLOCK 28 HOUSE, METTUR TALUK, SELAM DISTRICT TAMIL
            NADU, PIN - 636401

            BY ADVS.
            T.K.SANDEEP
            SWETHA R.



RESPONDENT:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031


OTHER PRESENT:

            SR PP SMT SEETHA S




     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. NO.2384 OF 2024             2




             Dated this the 20th day of June, 2024

                             ORDER

The application is filed under Sec.439 of the Code of

Criminal Procedure by the 2nd accused in Crime

No.01/2022 of the Palakkad Excise Range Office,

Palakkad, registered against the accused, for allegedly

committing the offence punishable under section 20(b)

(ii)(C) r/w Sec.29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short, 'NDPS Act'). The

petitioner was arrested on 05.01.2022.

2. The essence of the prosecution case is that: on

05.01.2022, at around 22:30 hours, when the Detecting

Officer and the party conducted a search in a KSRTC

stage carriage bus bearing No. KL-15-A-0295, they found

22.70 kgs of ganja in the two bags of the accused 1 and 2.

The accused were arrested on the spot with the

contraband articles. Thus, the accused have committed

the above offences.

3. Heard; Sri.T.K.Sandeep, the learned counsel for

the petitioner and Smt.Seetha S, the learned Senior

Public Prosecutor.

4. The learned counsel for the petitioner submitted

that the petitioner is totally innocent of the accusations

levelled against him. He has been falsely implicated in

the crime. There is no material to substantiate the

petitioner's involvement in the case. In any given case,

the petitioner has been in judicial custody for the last

2 ½ years, the investigation in the case is complete and

the final report has been laid. But, the trial in the case

has not been concluded. Therefore, the petitioner is

entitled to be released on bail.

5. The learned Public Prosecutor opposed the

application. She submitted that since the contraband

involved in the case is of a commercial quantity, the

rigour with section 37 of the Act applies. Therefore, the

petitioner is not entitled to be released on bail without

diluting the rigour under section 37 of the Act. There are

incriminating materials to substantiate the petitioner's

involvement in the case. Moreover, the trial in the case

has commenced and the same stands posted to 20.6.2024.

If the petitioner is released on bail, there is every

likelihood of him committing similar offences. Hence, the

application may be dismissed.

6. When the application came up for consideration

on 07.06.2024, this Court had called for a report from the

Court of Session, Palakkad, to ascertain the status and

the reasonable time period required to consider and

dispose of S.C.No.431/2022.

7. The learned Sessions Judge, by communication

dated 12.06.2024, has informed this Court that, the trial

in S.C.No.431/2022 has already commenced and six out

of the nine witnesses have been examined. The case now

stands posted to 20.06.2024 for the examination of CW9.

The court below requires three months time from

20.06.2024 to dispose of S.C.No.431/2022.

8. The prosecution allegation against the petitioner

and the first accused is that, they were found in conscious

possession of 22.70 kgs of ganja. Indisputably, the

contraband involved in the case is of a commercial

quantity.

9. 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 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.

10. 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 Act.

11. 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".

12. 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 NDPS Act have been prescribed".

13. 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.

14. 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".

15. On an overall scrutiny of the factual matrix, the

rival submissions made across the Bar, and the materials

placed on record, especially on comprehending the

seriousness, gravity, and nature of the offences alleged

against the petitioner, the potential severity of the

punishment that can be imposed on him, the commercial

quantity of the contraband is involved in the case and the

prima facie material that shows the petitioner's

involvement in the crime, and that the investigation in

the case is only at a nascent stage, I am not satisfied that

there are reasonable grounds to hold that the petitioner

is not guilty of the offence alleged against him and that