Kerala High Court
Anwar Salih vs State Of Kerala on 7 November, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:82855
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
BAIL APPL. NO. 8419 OF 2024
CRIME NO.396/2023 OF PANTHEERANKAVU POLICE STATION, KOZHIKODE
AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.1656 OF
2024 OF HIGH COURT OF KERALA
PETITIONER/FIRST ACCUSED:
ANWAR SALIH,
AGED 27 YEARS
SON OF HAMSA KOYA,KALATHUMKANDI HOUSE,
FEROKE.P.O, KOZHIKODE., PIN - 673631
BY ADVS.
A.ARUNKUMAR
S.SHYAM KUMAR
SACHIN GEORGE ARAMBAN
NESILI NAZEER
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SR PP SRI C S HRITHWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2024:KER:82855
B.A.No.8419 of 2024
-:2:-
Dated this the 7th day of November, 2024
ORDER
The application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, by the first
accused in Crime No. 396/2023 of the Pantheerankavu
Police Station, Kozhikode, which is registered against
two accused persons for allegedly committing the
offence punishable under Section 22(c) r/w Section 29 of
the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short, 'the Act'). The petitioner was arrested on
01.06.2023.
2. The essence of the prosecution case is that: on
01.06.2023, at 15.50 hours, the accused were found in
conscious possession of 53.29 grams of MDMA in a room
in a hotel and also from a car bearing registration No. KL
64 F 9600. Thus, the accused have committed the above
offences.
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3. Heard; Sri.Arunkumar. A., the learned counsel
appearing for the petitioner and Sri. C.S. Hrithwik, 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. There is no material to
substantiate the petitioner's involvement in the crime.
There is a change of circumstance subsequent to the
passing of Annexure 1 order since the petitioner is now
suffering from glaucoma. The petitioner has to be treated
at the Aravind Eye Hospital, Madurai. Hence, the
petitioner may be released on bail.
5. The learned Public Prosecutor opposed the
application. He submitted that the petitioner was found
in conscious possession of a commercial quantity of
contraband. Therefore, the rigour under Section 37 of
the Act applies to the facts of the case. Moreover, the
petitioner is a person with criminal antecedents since he
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is involved in Crime No. 799/2021 of the Medical College
Police Station, Kozhikode. Hence, the petitioner fails to
qualify the second limb of Section 37 of the Act in view
of the law laid down in Dheeraj Kumar Shukla v. The
State of Uttar Pradesh [2023 KHC 6545]. Moreover,
the petitioner has suppressed the material fact that he
filed CMP Nos. 507/2024 and 863/2024 to get himself
enlarged on bail before the Court of Special Judge
(NDPS Act cases) (the Trial Court), Vadakara. But, by
Annexures AV and AVI orders, both the applications
were dismissed. It is thereafter that the petitioner
approached this Court. Hence, the application may be
dismissed.
6. When the application came up for
consideration on 21.10.2024, this Court had called for a
report from the Trial Court to ascertain whether the
petitioner had revealed the material fact regarding the
passing of Annexure A1 order by this Court.
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7. Pursuant to the said order, the Trial Court, by
communication dated 24.10.2024, has informed this
Court that the petitioner had filed CMP Nos. 507/2024
and 863/2024 before the Trial Court to enlarge him on
bail. But, in both the applications, the petitioner had
suppressed the material fact regarding the passing of
Annexure 1 order by this Court.
8. The prosecution case is that, the petitioner was
found in conscious possession of 53.29 grams of
MDMA, which subsequently turned out to be
methamphetamine. Yet, the contraband is of a
commercial quantity. The fact remains that the
petitioner has been in judicial custody since 22.12.2022,
which is nearly two years.
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;
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"37. Offences to be cognizable and nonbailable.--(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
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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 Vs. Ram Samujh and
Another [1999 KHC 1542], the Honourable Supreme
Court has laid down the law as follows:
"7. It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered to and followed. It should
be borne in mind that in a murder case, the accused commits
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murder of one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in causing death or
in inflicting death blow to a number of innocent young
victims, who are vulnerable; it causes deleterious effects and
a deadly impact on the society; they are a hazard to the
society; even if they are released temporarily, in all
probability, they would continue their nefarious activities of
trafficking and/or dealing in intoxicants clandestinely. Reason
may be large stake and illegal profit involved. This Court,
dealing with the contention with regard to punishment under
the NDPS Act, has succinctly observed about the adverse
effect of such activities in Durand Didier v. Chief Secretary.,
Union Territory of Goa. [1990 (1) SCC 95 : 1990 SCC (Cri) 65]
as under:
"24. With deep concern, we may point out that the organised
activities of the underworld and the clandestine smuggling of
narcotic drugs and psychotropic substances into this country
and illegal trafficking in such drugs and substances have led
to drug addiction among a sizeable section of the public,
particularly the adolescents and students of both sexes and
the menace has assumed serious and alarming proportion in
the recent years. Therefore, in order to effectively control and
eradicate this proliferating and booming devastating menace,
causing deleterious effects and deadly impact on the society
as a whole, the Parliament in its wisdom, has made effective
provisions by introducing this Act 81 of 1985 specifying
mandatory minimum imprisonment and fine,"
8. To check the menace of dangerous drugs flooding the
market, the Parliament has provided that the person accused
of offences under the NDPS Act should not be released on bail
during trial unless mandatory conditions provided in Section
37, namely,
(i) there are reasonable grounds for believing that accused is
not guilty of such offence; and (ii) that he is not likely to
commit any offence while on bail are satisfied. The High Court
has not given any justifiable reason for not abiding by the
aforesaid mandate while ordering the release of the
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respondentaccused on bail. Instead of attempting to take a
holistic view of the harmful socio-economic consequences and
health hazards which would accompany trafficking illegally in
the dangerous drugs, the Court should implement the law in
the spirit with which the Parliament, after due deliberation,
has amended."
13. In State of Kerala and others v. Rajesh
and others [(2020) 12 SCC 122], the Honourable
Supreme Court has laid down the law as follows:
"19. The scheme of Section 37 reveals that the
exercise of power to grant bail is not only subject to
the limitations contained under Section 439 CrPC,
but is also subject to the limitation placed by Section
37 which commences with non obstante clause. The
operative part of the said section is in the negative
form prescribing the enlargement of bail to any
person accused of commission of an offence under
the Act, unless twin conditions are satisfied. The first
condition is that the prosecution must be given an
opportunity to oppose the application; and the
second, is that the court must be satisfied that there
are reasonable grounds for believing that he is not
guilty of such offence. If either of these two
conditions is not satisfied, the ban for granting bail
operates. 20. The expression "reasonable grounds"
means something more than prima facie grounds. It
contemplates substantial probable causes for
believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the
provision requires existence of such facts and
circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of
the alleged offence. In the case on hand, the High
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Court seems to have completely overlooked the
underlying object of Section 37 that in addition to
the limitations provided under the CrPC, or any
other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of
bail under the NDPS Act is indeed uncalled for.
21. We may further like to observe that the learned
Single Judge has failed to record a finding mandated
under Section 37 of the NDPS Act which is a sine
qua non for granting bail to the accused under the
NDPS Act". "
14. As observed in Rajesh's case (supra), 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.
15. In addition to the same, it is an admitted fact
that the petitioner is an accused in another crime. Therefore,
the petitioner is a person with criminal antecedents. In view
of the law laid down in Dheeraj Kumar Shukla v. The
State of Uttar Pradesh [2023 KHC 6545], the petitioner
also fails to qualify the 2nd limb under Section 37 of the Act.
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16. Furthermore, the petitioner had suppressed
the material fact before the Trial Court that he had
earlier approached this Court, which is in flagrant
violation of the settled proposition of law in Kusha
Duruka vs. State of Odisha [2024(1) KHC 389].
17. After bestowing my anxious consideration to
the facts, the rival submissions made across the Bar, and
the materials placed on record, and taking into
consideration the observations made above, the prima
facie materials which substantiate the petitioner's
involvement in the crime, and further that the
commercial quantity of contraband is involved in the
case, I am of the view that there are no reasonable
grounds to hold that the petitioner is not guilty of the
offence alleged against him and that he is not likely to
commit a similar offence if he is enlarged on bail. Also,
the petitioner has suppressed material facts before the
Trial Court. The application is meritless and is only to be
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dismissed. The Registry is directed to forward a copy of
this order to the Trial Court.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS,JUDGE
mtk/07.11.24
2024:KER:82855
APPENDIX OF BAIL APPL. 8419/2024
PETITIONER ANNEXURES
Annexure 1 ORDER DATED 03-06-2024 IN BAIL
APPL.1656/2024 ON HIGH COURT
Annexure AI A TRUE OF THE FINAL REPORT IN CRIME
NO.396 OF 2023 OF PANTHEERANKAVU POLICE
STATION
Annexure AII A TRUE COPY OF THE BAIL APPLICATION FILED
BY THE PETITIONER SHOWING THE ABOVE
MENTIONED ENTRY DATED 28-11-2023
Annexure AIII A TRUE COPY OF THE ORDER DATED 27-12-2023
IN C.M.P.NO.1263 OF 2023 OF THE SPECIAL
COURT (N.D.P.S.ACT CASES) VATAKARA
Annexure AIV A TRUE COPY OF THE ORDER DATED 03-06-2024
IN BA.NO.1656 OF 2024
Annexure AV A TRUE COPY OF THE ORDER DATED 01-07-2024
IN C.M.P.NO.507 OF 2024 OF THE SPECIAL
COURT (N.D.P.S.ACT CASES) VATAKARA
Annexure AVI A TRUE COPY OF THE ORDER DATED 12-09-2024
IN C.M.P.NO.863 OF 2024 OF THE SPECIAL
COURT (N.D.P.S.ACT CASES) VATAKARA
Annexure AVII A TRUE COPY OF THE ORDER DATED 11-12-2023
IN B.A.NO.8992 OF 2023
Annexure AVIII A TRUE COPY OF THE ORDER DATED 03-04-2024
IN B.A.NO.2190 OF 2024
Annexure AIX A TRUE COPY OF THE ORDER DATED 25-09-2024
IN B.A.NO.7706 OF 2024
