Kerala High Court

Vishnu vs State Of Kerala on 24 September, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                 2024:KER:70956


                                 1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
 TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
                   BAIL APPL. NO. 5164 OF 2024
 CRIME NO.1102/2023 OF KARUNAGAPALLY POLICE STATION, KOLLAM
        AGAINST THE ORDER/JUDGMENT DATED IN SC NO.32 OF 2024
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOLLAM /
IV ADDL.M.A.C.T.

PETITIONER:

           AJITH,
           AGED 26 YEARS
           S/O. BABU, MUTHIRAKUNNATHU VEETIL, AYATHIL
           VALIYAMADAM, KALLUMTHAZHAM CHERRY,
           KILIKOLLOOR,VILLAGE, KOLLAM DISTRICT, PIN - 691004


           BY ADVS.
           SAM ISAAC POTHIYIL
           S.SURAJA
           MUHAMMED SUHAIR C.A
           KIRAN MATHEW
           RAMU SUBHASH
           ANANTHAKRISHNAN R.


RESPONDENTS:

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

    2      KARUNAGAPPALLY POLICE STATION,
           KOLLAM DISTRICT,, PIN - 690518
                                               2024:KER:70956
BAIL APPL. NOS.1275, 5164 & 1381   OF 2024

                              2
OTHER PRESENT:

         SR PP SMT SEETHA S


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.09.2024, ALONG WITH Bail Appl..1275/2024, 1381/2024, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                2024:KER:70956
BAIL APPL. NOS.1275, 5164 & 1381     OF 2024

                              3

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
 TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
                 BAIL APPL. NO. 1275 OF 2024
 CRIME NO.1102/2023 OF KARUNAGAPALLY POLICE STATION, KOLLAM

PETITIONER:

         VISHNU,
         AGED 29 YEARS
         S/O RAMESHAN, DHWARAKA, ADINADU SOUTH, ADINADU
         VILLAGE, KATTILKADVU P.O., KARUNAGAPPALLY TALUK,
         KOLLAM, PIN - 690542


         BY ADVS.
         M.R.SASITH
         RIYA KOCHUMMAN
         ANJANA SURESH.E
         P.SANTHOSHKUMAR (KARUMKULAM)


RESPONDENT:

         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
24.09.2024, ALONG WITH Bail Appl..5164/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                 2024:KER:70956
BAIL APPL. NOS.1275, 5164 & 1381      OF 2024

                                 4

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
 TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
                  BAIL APPL. NO. 1381 OF 2024
 CRIME NO.1102/2023 OF KARUNAGAPALLY POLICE STATION, KOLLAM
        AGAINST THE ORDER/JUDGMENT DATED 06.02.2024 IN CRMP
NO.236 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT
- V, KOLLAM / IV ADDL.M.A.C.T.

PETITIONER:
          SAMUEL,
          AGED 24 YEARS
          S/O. SUDHAKARAN, KRISHNA NIVAS, NAMBARUVIKALA,
          ALUMKADAVU. P.O., KARUNAGAPPALLY VILLAGE,
          KARUNAGAPPALLY, KOLLAM, PIN - 690573

           BY ADVS.
           C.P.UDAYABHANU
           NAVANEETH.N.NATH
           RASSAL JANARDHANAN A.
           ABHISHEK M. KUNNATHU
           BOBAN PALAT
           P.U.PRATHEESH KUMAR
           P.R.AJAY
           K.U.SWAPNIL


RESPONDENTS:
    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
          KERALA, ERNAKULAM, PIN - 682031

    2      SUB INSPECTOR OF POLICE,
           KARUNAGAPPALLY POLICE STATION,KOLLAM, PIN - 690518

           SR.PP SMT.SEETHA S.


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.09.2024, ALONG WITH Bail Appl..5164/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                 2024:KER:70956
BAIL APPL. NOS.1275, 5164 & 1381    OF 2024

                                5




      Dated this the 24th day of September, 2024

                     COMMON ORDER

The applications are filed under Section 439 of

the Code of Criminal Procedure, 1973, by the accused 2,

3 and 5 in Crime No.1102/2023 of the Karunagapally

Police Station, Kollam, which is registered against eight

accused persons for allegedly committing the offences

punishable under Sections 22 (c), 27A, r/w Section 29 of

the Narcotic Drugs and Psychotropic Substances Act,

1985 (in short, "Act"). The second accused was arrested

on 15.8.2023, the third accused was arrested on

26.8.2023 and the 5th accused was arrested on

30.08.2023. As the applications arise out of the same

crime, they are consolidated, jointly heard and disposed

of by this common order. The second and third accused

had earlier filed applications for bail, which were

dismissed by this Court.

2.The gist of the prosecution case is that: on 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

18.07.2023, at around 18:55 hours, the Detecting Officer

and party received information that the first accused

was in possession of Psychotropic Substances.

Accordingly, they went to the house of the first accused,

who on seeing the Detecting Officer scaled the walls and

fled away from his house. However, later he was

apprehended. Consequently, the Detecting Officer and

party conducted a search in the first accused's house

and they seized white crystalline material. The first

accused confessed that the substance was MDMA.

Accordingly, a body search was also conducted on him,

A total quantity of 728.42 grams of MDMA was seized

from the first accused. During the course of

investigation and in the interrogation of the first

accused, it was revealed that the sim card that was

taken in the name of Ansad was linked to the Indian

Overseas Bank with the Bank account of one Reshmi

Raj, who is the first accused's brother in law's wife. It

was also revealed that the first accused had transferred 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

Rs.57,46,000/- in seven months through google pay and

phone pay applications through a mobile phone number

9037414081. The sim card was taken in the name of

one Ramesh and used by his son Vishnu (second

accused). The investigation has revealed that the

second accused was funding the first accused to

purchase the contraband articles. The first accused had

paid Rs.2,54,000/- to a profile named 'Devil Don', who is

none other than the third accused, and the brother in

law of the first accused. The third accused had sent

Rs.85,000/- to the fourth accused and Rs.50,000/- to one

Seema Sinha of New Delhi. The 4th accused, who is the

wife of the third accused, received Rs.7,80,000/- from

the first accused. The 4th accused had transferred

Rs.1,00,000/- to Seema Sinha to purchase the

contraband articles. The first accused had sent the

account details of the third accused through whatsapp

and shared the screenshots. The accused have hatched

a conspiracy to commit the crime. Thus, the accused 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

have committed the above offences.

3.Heard; Sri. C.P.Udhayabhanu, Sri. Sam Issac

Pothiyil, and Sri. M.R.Sasith, the learned counsel

appearing for the petitioners and Smt.Seetha S. and

Smt.Pushpalatha M.K the learned Senior Public

Prosecutors.

4. The learned counsel for the 5 th accused argued

that there is no material to substantiate that the

petitioner is involved in the crime. The petitioner is

only the paid driver of the first accused. The petitioner

has only complied with the directions of his employer

and diligently obeyed all his instructions. There is no

culpability on his part so as to attract the offences

under Sections 27A and 29 of the Act. The petitioner is

a law abiding citizen without any criminal antecedents.

Hence, the application may be allowed.

5. The learned counsel appearing for the second

and third accused submitted that there is change of

circumstances subsequent to the passing of Annexure 2 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

common order in B.A. No.9082/2023 and 9418/2023,

because the investigation is complete and the complaint

has been filed. Therefore, the petitioners' further

detention is unnecessary. Moreover, the said accused

are in judicial custody for the last one year. There is no

likelihood of the trial in the case commencing in the near

future. Hence, the applications may be allowed.

6. The learned Public Prosecutors vehemently

opposed the applications. The Investigating Officer has

filed a bail objection report, inter alia, reiterating the

contentions in the complaint which has already been

referred to above. She submitted that there are

incriminating materials to substantiate the petitioners'

involvement in the crime. There are monetary

transactions between all the accused which undoubtedly

reveal that there is culpability on their side. The fact

that the first accused had used the bank account of the

4th accused, who is the wife of the first accused, and

there were frequent bank and online transactions with 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

the first accused and a lady named Seema Sinha to a

bank account in New Delhi and they shared the

screenshots of the transactions between them, and

further that the petitioners had sent money to a African

national, who is the supplier of the contraband article,

prove their culpability. The transactions took place two

days prior to the date of the present incident. The above

chain of events are sufficient to hold there are

reasonable grounds that the accused are guilty. The

contraband involved in the case is of a commercial

quantity, and further Sections 27A and 29 of the Act has

also been incorporated. Therefore, the rigour under

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

There are no reasonable grounds to hold that the

petitioners have not committed the above offences and

they are not likely to commit the offences if they are

enlarged on bail. The applications are meritless and are

only to be dismissed.

2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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".

2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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

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 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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 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;

2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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

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 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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

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 2024:KER:70956 BAIL APPL. NOS.1275, 5164 & 1381 OF 2024

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. Indisputably, 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.

14. On an overall scrutiny of the facts, the rival

submissions made across the Bar and the materials

placed on record, and on comprehending the nature,

seriousness and gravity of the accusations attributed

against the petitioners, the potential severity of the

punishment that can be imposed on the petitioners, the

commercial quantity of the contraband involved in the

case and the prima facie material that show the