Kerala High Court

Muhammed Akbar vs State Of Kerala on 17 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 5307 OF 2024

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                                               2024:KER:76971
          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

 THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946

                   BAIL APPL. NO. 5307 OF 2024

 CRIME NO.18/2024 OF Palakkad Excise Range Office, Palakkad

     AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.2800 OF

2024 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD

PETITIONER/S:

         MUHAMMED AKBAR,
         AGED 32 YEARS
         S/O. KUNJAVARAN, KAVUNGAL HOUSE, MELMURI,
         POOKKOTTUR VILLAGE, ERNAD TALUK, MALAPPURAM
         DISTRICT., PIN - 676517


         BY ADVS.
         R.RANJITH (MANJERI)
         K.S.SREEJA




RESPONDENT/S:

         STATE OF KERALA,
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         SR.PP.SMT.PUSHPALATHA M.K.


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 5307 OF 2024

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                                                 2024:KER:76971
                           C.S.DIAS,J
            --------------------------------------------
            Bail Application No.5307 of 2024
            ---------------------------------------------
          Dated this the 16th day of October, 2024

                            ORDER

The application is filed under Section 439 of the

Code of Criminal Procedure, 1973 (in short, 'Code') by

the sole accused in Crime No.18/2024 of the Palakkad

Excise Range Office, Palakkad, which is registered

against him for allegedly committing the offence

punishable under Section 20(b)(ii)(C) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (in short,

'Act'). The petitioner was arrested on 06.03.2024.

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

06.03.2024, at around 20:25 hours, the accused was

found on the first platform of the Palakkad Junction

Railway Station with 62.640 kilograms of ganja. He was

arrested on the spot with the contraband article. Thus,

the accused has committed the above offence.

3. Heard; Sri.R.Ranjith, the learned counsel

appearing for the petitioner and Smt.Pushpalatha M.K., BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 the learned Public Prosecutor.

4. The learned counsel for the petitioner

submitted that the petitioner is totally innocent of the

accusations leveled against him. In fact, the petitioner

has been planted as an accused by the Detecting Officer

out of his previous animosity. The CCTV footages of the

Railway Station would clearly reveal that the contraband

article was given by the Detecting Officer to the

petitioner. The Detecting Officer has not complied with

the statutory stipulations under Section 50 of the Act.

The petitioner is a law abiding citizen without any

criminal antecedents. The petitioner has been in judicial

custody for the last seven months, 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 opposed the

application. She submitted that the contraband was

seized from the conscious possession of the petitioner.

Since the contraband is of a commercial quantity, the BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 rigour under Section 37 of the Act applies to the facts of

the case. Even though the petitioner had filed two

similar applications before the Court of Session,

Palakkad, the same were dismissed on finding that the

contraband involved in the case is of a commercial

quantity. There are incriminating materials to

substantiate the petitioner's involvement in the crime.

Merely because the petitioner has been in judicial

custody for the last seven months, the same is not a

ground to enlarge him on bail. There are no reasonable

grounds to hold that the petitioner has not committed

the above offence. Hence, the application may be

dismissed.

6. The prosecution allegation is that the

petitioner was found in conscious possession of 62.640

kilograms of ganja. The petitioner was arrested on the

spot with the contraband article. Indisputably the

contraband involved in the case is of a commercial

quantity.

7. Section 37 of the Narcotic Drugs and BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 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".

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 BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 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

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 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 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 BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 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 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."

11. In State of Kerala and others v. Rajesh

and others [(2020) 12 SCC 122], the Honourable

Supreme Court held 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 BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 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 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".

12. 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.

On an overall scrutiny of the facts, the rival

submissions made across the Bar and the materials

placed on record, especially on comprehending the

nature, seriousness and gravity of the accusations

attributed against the petitioner, there are prima facie BAIL APPL. NO. 5307 OF 2024

2024:KER:76971 materials to substantiate the petitioner's involvement in

the crime and the contraband involved in the case is of a