Kerala High Court

Agnes D. Melvin vs State Of Kerala on 30 September, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                      2024:KER:72478

             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. 7002 OF 2024

  CRIME NO.1592/2023 OF KOLLAM EAST POLICE STATION, KOLLAM

             AGAINST THE ORDER/JUDGMENT DATED 17.05.2024 IN

 SC NO.380 OF 2024 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,

                               KOLLAM

PETITIONER/ACCUSED NO.2:

         AGNES D. MELVIN,
         AGED 21 YEARS
         D/O. MELVIN, CHEMBAKATHUMOODU, SIJI BHAVANAM,
         ALUMMOODU P.O, KOLLAM, PIN - 691577


         BY ADV APOORVA RAMKUMAR

RESPONDENT/COMPLAINANT:

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



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.09.2024,    THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                 2024:KER:72478
BAIL APPL.NO.7002/2024

                              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 2nd accused in Crime No.1592 of 2023 of

the Kollam East Police Station, Kollam, which is

registered against three accused persons for allegedly

committing the offence punishable under Section 22(C)

of the Narcotic Drugs and Psychotropic Substances Act,

1985 (in short, 'NDPS Act'). The petitioner was arrested

and remanded to judicial custody on 17.10.2023.

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

accused 1 to 3 had hatched a conspiracy for the sale of

contraband article. Accordingly, the 1st accused had

paid the 2nd accused, Rs.1,00,000/-, who in turn paid

Rs.80,000/- to the 3rd accused and purchased 75 grams

of MDMA from Banglore. The 1st accused was arrested 2024:KER:72478

on the spot with the contraband article. Thus, the

accused have committed the above offence.

3. Heard; Smt.Apoorva Ramkumar, the learned

counsel appearing for the petitioner and Smt.Seetha S.

the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner has

submitted that the petitioner is innocent of the

accusations levelled against her. There is no materials to

substantiate the petitioner's culpability in the crime.

The petitioner has been implicated as an accused solely

on the basis of the statement of CW7, who has stated

that there was a financial transaction between the

petitioner and the 1st accused. In fact, the petitioner is

only a student and she had paid the above amount

towards her tuition fees. There is no other materials to

show that the petitioner had hatched a conspiracy with

accused 1 and 3. The petitioner is a young lady, who is 2024:KER:72478

perusing her studies. The petitioner has been in judicial

custody for the last one year, the investigation in the

case is complete and complaint has been filed.

Therefore, the petitioner's further detention is not

necessary. Hence, the application may be allowed.

5. The learned Public Prosecutor seriously

opposed the application. She submitted that there are

incriminating materials to substantiate the petitioner's

involvement in the crime. CW7 has categorically stated

that the 1st accused had paid Rs.1,00,000/- to the 2 nd

accused, who in turn paid Rs.80,000/- to the 3 rd accused,

who is a Sudanese National. Accordingly, the 3rd

accused supplied the contraband article to the 2nd

accused for the purpose of commercial sale. Similarly,

the petitioner herself has confessed that it was the 3 rd

accused, who has supplied the contraband article. Since

the contraband involved in the case is of commercial 2024:KER:72478

quantity, the rigour under Section 37 of the NDPS Act

applies to the facts of the case. There are reasonable

grounds to find that the petitioner has committed the

above offence. Hence, the bail application may be

dismissed.

6. The prosecution case is that, the

petitioner alongwith accused 1 and 3 had hatched a

conspiracy to procure 75 grams of MDMA.

Consequently, the 1st accused paid the petitioner,

Rs.1,00,000/-, who in turn paid Rs.80,000/- to the 3 rd

accused, after deducting her commission of Rs.20,000/-.

CW7 and other materials prove the transactions

between the accused persons. It is also on record that

the petitioner had confessed that it is the 3 rd accused,

who supplied the contraband to the petitioner. Whether

the confession is valid is a matter to be ultimately

decided after trial. The fact remains that the 2024:KER:72478

contraband involved in the case is of commercial

quantity.

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 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 2024:KER:72478

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

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 2024:KER:72478

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 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, 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 2024:KER:72478

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 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 2024:KER:72478

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".

11. 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.

12. In Prasanta Kumar Sarkar v. Ashis

Chatterjee [(2010) 14 SCC 496], the Honourable

Supreme Court has laid down the broad parameters for 2024:KER:72478

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