Kerala High Court

Noufal vs State Of Kerala on 23 May, 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 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946

                      BAIL APPL. NO. 1897 OF 2024

        CRIME NO.1648/2023 OF KOTTIYAM POLICE STATION, KOLLAM

AGAINST THE ORDER/JUDGMENT DATED 04.01.2024 IN CRMC NO.2669 OF 2023

OF DISTRICT COURT & SESSIONS COURT,KOLLAM

PETITIONER/ACCUSED:



           NOUFAL,
           AGED 28 YEARS
           S/O. MUHAMMED,PUTHUPARAMBIL, NEAR POYMUKKU MASJID,
           PANOOR,KIZHAKKOTTU, KOZHIKODE, PIN - 670692

           BY ADVS.
           L.RAJESH NARAYAN
           N.A.JAMAL



RESPONDENT:

           STATE OF KERALA,
           REPRESENTED BY THE STATION HOUSE OFFICER, KOTTIYAM
           POLICE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM, PIN - 682031
           SR.PUBLIC PROSECUTOR SMT.NEEMA T.V.


THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.05.2024,THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A No.1897 of 2024
                            2




          Dated this the 23rd day of May, 2024
                         ORDER

The application is filed under Section 439 of the

Code of Criminal Procedure, 1973 by the sole accused in

Crime No.1648/2023 of the Kottiyam Police Station,

Kollam, registered against him for allegedly committing

the offences punishable under Sections 22 (c) and 20(b)

(ii) (A)of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (in short, "Act"). The petitioner was arrested on

18.10.2023.

2. The gist of the prosecution case is that, on

18.10.2023, at around 5.10 hours, the accused was

travelling in a bus and was found in possession of 71.60

grams of MDMA, which was kept in his inner wear. On his

interrogation, he also disclosed that he had stored some

contraband in his building. Accordingly, 20.49 grams of

hashish oil was seized from the petitioner's residential

building. Thus, the accused has committed the above

offence.

3. Heard; Sri. Rajesh Narayan, the learned counsel

appearing for the petitioner and Smt.Neema T.V., the

learned Senior Public Prosecutor.

4. The learned counsel appearing for the petitioner

submitted that the petitioner is totally innocent of

the accusations levelled against him. He has been

falsely implicated in the crime. The detecting officer has

violated the provisions under Sections 42 and 50 of the

Act. The petitioner has not been given the copy of the

chemical analysis report. In any given case, the petitioner

has been in judicial custody since 18.10.2023, the

investigation in the case is practically complete and

recovery has been effected. Therefore, the petitioner's

further detention is unnecessary. Hence, the application

may be allowed.

5. The learned Public Prosecutor seriously opposed

the application. She submitted that the contraband

involved in the case is of a commercial quantity.

Therefore, the rigour under Section 37 of the Act applies.

Moreover, the contention raised by the petitioner with

regard to the violation of Sections 42 and 50 of the Act

are matters of evidence. The said contention cannot be

raised in an application filed under Section 439 of the

Code. If the petitioner is released on bail, there is every

likelihood of him committing similar offences. Hence, the

bail application may be dismissed.

6. The prosecution allegation against the petitioner

is that he was found in possession of 71.60 grams of

MDMA and 20.49 grams of hashish oil, which were seized

from the petitioner's residence. Indisputably, as per the

specification under the Act 71.60 grams of MDMA falls

within commercial quantity.

7. Now, coming to the question whether the

contentions regarding to the violation of Sections 42 and

50 of the Act can be considered in an application filed for

bail is no longer res integra in view of the categoric

declaration of law by the Honourable Supreme Court and

this Court in Union of India v. MD Nawaz Khan [2021

KHC 6503] and the decision of this Court in Abeesh v.

State of Kerala [2022:KER:50902].

8. In Md Nawaz Khan's case, the Hon'ble

Supreme Court, after considering the earlier precedents

on the point, has held thus:

"28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana."

9. The above view has been followed by this Court

in Abeesh's case in the following lines:

"8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution

case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham's case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan's case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act."

10. In the light of exposition of law in Md Nawaz

Khan's case and Abeesh's case, which I fully concur, I

am of the firm view that the question raised by the

counsel for the petitioner and countered by the Public

Prosecutor is a matter than can only be decided after the

conclusion of trial and not at this nascent stage.

11. It is to be remembered that, the contraband

allegedly seized from the accused is of a commercial

quantity and, therefore, the rigour of Section 37 applies

to the facts of the case.

12. 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 apposite to

reproduce 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."

13. 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.

14. 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".

15. Md. Nawaz Khan's case, 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".

16. 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.

17. 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: