Kerala High Court

Noushad vs State Of Kerala on 30 September, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                       2024:KER:72479



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
  MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
                      BAIL APPL. NO. 7004 OF 2024
  CRIME NO.76/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC
                       SPECIAL SQUAD, PALAKKAD.
        AGAINST THE ORDER/JUDGMENT IN SC NO.441 OF 2024 OF
DISTRICT COURT & SESSIONS COURT, PALAKKAD ARISING OUT OF THE
 ORDER/JUDGMENT DATED 08.05.2024 IN CRMC NO.2486 OF 2024 OF
             DISTRICT COURT & SESSIONS COURT, PALAKKAD

PETITIONER/1ST ACCUSED:

         NOUSHAD,
         AGED 45 YEARS
         S/O.MOOSA,MAPPILAKKATT VEEDU, KODUVAPARAMBU,
         KUTTOOR NORTH, A.R. NAGAR, THIROORANGADI,
         MALAPPURAM, PIN - 676306

         BY ADVS.
         T.D.ROBIN
         LINU G. NATH
RESPONDENT/COMPLAINANT/STATE:
          STATE OF KERALA,
          REPRESENTED BY EXCISE INSPECTOR, EXCISE
          ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD,
          PALAKKAD (CRIME NO. 76/2023),THROUGH THE PUBLIC
          PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
          PIN - 682031

         SMT.SEETHA S (SR PP)
     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.09.2024,     THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                 2024:KER:72479
BAIL APPL.NO.7004/ 2024

                              2


                          ORDER

Dated this the 30th day of September, 2024

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,

'BNSS') by the 1st accused in Crime No.76 of 2023 of the

Excise Enforcement and Anti Narcotic Special Squad,

Palakkad, which is registered against two accused

persons for allegedly committing the offences punishable

under Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 ('Act', in short).

The petitioner was arrested and remanded to judicial

custody on 25.11.2023.

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

25.11.2023, at around 13:45 hours, the 1st accused was

found in conscious possession of 43.100 kilograms of

ganja, for the purpose of sale, in a lorry bearing

Registration No.KL-65-S-6545, which was driven by him.

2024:KER:72479

The accused was arrested on the spot with the

contraband article. During the course of investigation

and interrogation of the 1st accused, it has been revealed

that the contraband was supplied by the 2 nd accused.

Thus, the accused have committed the above offences.

3. Heard; Sri.Robin T.D, 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 innocent of the

accusations levelled against him. There is no material to

substantiate the petitioner's culpability in the crime.

The petitioner has been implicated solely on the basis of

suspicion. In fact, there is an infraction of Section 50 of

the Act, since the petitioner's body search was

conducted in the absence of a Gazetted Officer. The

petitioner has been languishing in jail for the last one 2024:KER:72479

year, the investigation in the case, so far the petitioner is

concerned, is practically complete and recovery has been

effected. Therefore, the petitioner's further detention is

not necessary. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that there are incriminating

materials to substantiate the petitioner's involvement in

the crime, since the contraband involved in the case is of

a commercial quantity. Therefore, the rigour under

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

the contraband was seized from the vehicle driven by the

petitioner, there is no question of any infraction under

Section 50, as body search of the petitioner was

inconsequential. Merely because the petitioner is in

judicial custody for the last one year, the same is not a

ground to enlarge the petitioner on bail. Therefore, the

application may be dismissed.

2024:KER:72479

6. The prosecution case against the

petitioner is that, the petitioner was found in conscious

possession and transporting 43.100 kilograms of ganga,

in a lorry driven by him. He was arrested on the spot

with the contraband article.

7. The principal contention of the learned

counsel for the petitioner is that, since a body search

was conducted on the petitioner in the absence of a

Gazatted Officer, there is an infraction of Section 50 of

the Act, and the same has caused prejudice to the

petitioner.

8. Indisputably, 43.100 kilograms of ganga

was recovered from the vehicle that was driven by the

petitioner. Even going by the petitioner's defence that

the body search was conducted on him, the prosecution

does not have a case that any contraband was recovered

from his body. So, the offence attributed against the 2024:KER:72479

petitioner that he was found in possession of 43.100

kilograms of of ganja. Whether a body search was

conducted on the petitioner, and if it has caused any

prejudice to the petitioner are matters to be ultimately

decided after trial. The fact remains that the contraband

involved in the case is of a commercial quantity and the

same was seized from the lorry driven by the petitioner.

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 2024:KER:72479

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 2024:KER:72479

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 State of Kerala and others v. Rajesh

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

Supreme Court held as follows:

"18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under:

"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, 2024:KER:72479

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. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under:

(SCC p. 104, para 24)

'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 proportions 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, 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, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the 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 respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations 2024:KER:72479

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 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".

13. 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 2024:KER:72479

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 applications for bail in the

following lines:

"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 analysis of the facts, the rival

submissions made across the Bar and the materials

placed on record, and on comprehending the nature, 2024:KER:72479

seriousness and gravity of the accusations attributed

against the petitioner, the potential severity of the

punishment that can be imposed on the petitioner, the

commercial quantity of the contraband involved in the

case and the prima facie material that show the

petitioner's involvement in the crime, 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 he is not likely to commit a similar offence if he