Kerala High Court

Muhammed Musthafa 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. 2621 OF 2024
   CRIME NO.2/2023 OF KUMBALA EXCISE RANGE OFFICE, KASARGOD
AGAINST THE ORDER/JUDGMENT DATED 04.03.2024 IN SC NO.446 OF
2023    OF    ADDITIONAL   DISTRICT   COURT   &   SESSIONS   COURT   -   II,
KASARAGOD / II ADDITIONAL MACT, KASARAGODE
PETITIONER/ACCUSED:

              MUHAMMED MUSTHAFA,
              AGED 30 YEARS
              SON OF UMMER, SEETHI HAJI QUARTERS, MIYA PADAVU
              DESOM, MOODAMBAIL VILLAGE, MANJESHWAR TALUK,
              KASARAGOD DISTRICT, PIN - 671323

              BY ADVS.
              T.MADHU
              C.R.SARADAMANI
              RENJISH S. MENON
              VRINDA T.S.
              AISWARYA JAYAPAL



RESPONDENT:

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

              SR.PUBLIC PROSECUTOR SMT.SEETHA S.


       THIS    BAIL APPLICATION   HAVING COME      UP FOR    ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 2621 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 accused in

Crime No.2/2023 of the Kumbala Excise Range Office,

Kasargod, registered against the accused for allegedly

committing the offences punishable under Sections 20(b)

(ii) (c) and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short, "Act"). The petitioner

was arrested on 30.01.2023.

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

30.01.2023, at around 11 hours, the accused was found

in possession of 30.040 kg of ganja, which was imported

from the State of Andra Pradesh for sale. The

contraband was seized from the house of the accused. BAIL APPL. NO. 2621 OF 2024

The accused was arrested at the spot with the

contraband. Thus, the accused has committed the above

offences.

3. Heard; Sri.T.Madhu, the learned counsel

appearing 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

leveled 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 since

30.01.2023, the investigation in the case is complete and

the complaint has been laid. Therefore, the petitioner's

further detention is unnecessary.

5. The learned Public Prosecutor seriously opposed

the application. She submitted that the petitioner is

involved in a case where the contraband is of a

commercial quantity. Therefore, the rigour under BAIL APPL. NO. 2621 OF 2024

Section 37 of the Act applies to the facts of the case. 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 30.040 kg of ganja. As

per the specification under the Act the contraband is of a

commercial quantity. Hence, the rigour under Section

37 of the Act applies to the facts of the case.

7. 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 BAIL APPL. NO. 2621 OF 2024

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."

8. 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.

9. While interpreting 'reasonable grounds'

prescribed under Section 37 of the Act, the Honourable

Supreme Court in Union of India v. Shiv Shanker BAIL APPL. NO. 2621 OF 2024

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".

10. 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".

11. 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.

BAIL APPL. NO. 2621 OF 2024

12. 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".

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

rival submissions made across the Bar, the materials

placed on record and on comprehending the seriousness,

gravity, and nature of the offences alleged against

petitioner, the potential severity of the punishment that

can be imposed on him, the commercial quantity of the BAIL APPL. NO. 2621 OF 2024

contraband involved in the case and the prima facie

material that has been placed before this Court, and that

the investigation in the case is only at a nascent stage, I

am satisfied that there is no reasonable ground to hold

that the petitioner is not guilty of the offence alleged

against him and that he is not likely to commit a similar