Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945 CRIME NO.1472/2021 OF ANGAMALI POLICE STATION, ERNAKULAM PETITIONER/ACCUSED NO.4: MUNEER AGED 31 YEARS S/O SULTHAN, MUNEER MANZIL, LSPO NOORANANDU , KOTTAKKATUSSERI MURIYIL, THAMARAKKULAM VILLAGE, NOW RESIDING AT M/S SAGAR, PUTHENVILA KIZHAKKETHIL, ULAVAKKADUMURI BHAGOM, PALAMEL VILLAGE, ALAPPUZHA DISTRICT., PIN - 690571 BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SADIK ISMAYIL R.GAYATHRI SAIPOOJA M.MAHIN HAMZA SAFIYA AKBAR FAIZEL K. RESPONDENT/STATE/COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER ANGAMALY POLICE STATION, ERNAKULAM DISTRICT, PIN - 683572 BY SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Dated this the 24th day of May, 2023 This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner, who is the 4th accused in crime No.1472/2021 of Angamaly police station.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant documents form part of the case diary placed by the learned Public Prosecutor.
3. The prosecution case is that the first accused in this
crime, who is a convict for the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act', for short) had collected money from accused Nos.2, 4, 5 and 6 through the account of the 7 th accused and through the account of the 8 th accused and purchased and transported a total quantity of 225.380 kg of
ganja along with accused Nos.2 and 3 in two motor cars and the contraband was seized by the police when the same was transported on 08.11.2022. Pursuant to the arrest of the first accused, crime alleging commission of offences punishable under Sections 20(b)(ii)C and 29 of the NDPS Act was registered.
4. The learned counsel for the petitioner would submit
that the petitioner, who is arrayed as fourth accused, has no role in this occurrence and nothing recovered from his conscious possession. It is also pointed out that the petitioner has been in custody from 12.12.2021 and the trial not so far started. Accordingly, the learned counsel pressed for grant of regular bail to the petitioner. The illness of the mother is also pointed out as a ground to grant regular bail.
5. Whereas it is submitted by the learned Public Prosecutor that the prosecution collected sufficient materials, showing transfer of money by the fourth accused to the
account maintained by the first accused. That apart, constant contacts in between the petitioner herein and the first accused through 17 contacts maintained by the petitioner were brought out during investigation to show the complicity of the accused in this crime. It is also pointed out that the petitioner is a person having criminal antecedents and this is the 8 th crime
registered against him. Therefore, the learned Public Prosecutor strongly opposed bail.
6. The following are the antecedents reported in relation to the petitioner.
1. Crime No.605/2015 of Manarkad police station under Section 279 of IPC.
2. Crime No.1267/2018 of Pandalam police station under Sections 269 of IPC and 120(e) of KP Act.
3. Crime No. 39/2019 of Pathanamthitta police station under Sections 279 and 304 of IPC.
4. Crime No.305/2020 of Adoor police station under Sections 269 and 277 of IPC.
5. Crime No.60/2017 of Nooranadu police station under Section 118(A) of KP Act & Section 4(2)(e) of KEDO
6. Crime No. 508/2021 of Kurathikadu police station under Sections 4(2)(j) of Kerala Epidemic Diseases act 2021
7. Crime No.499/2021 of Muttam police station under Sections 188, 269 IPC & Section 4(2)(e) of KEDO Corona Virus Disease (Covid-19) Additional Regulations 2020 and 3(b) of Disaster Management Act 2005.
7. On perusal of the prosecution records and constant
calls between the first accused and the other accused and the fourth accused along with deposit of money by the first accused for the purchase of contraband is foreseeable. Further, this is the 8th crime committed by the petitioner and therefore, the status of the petitioner is that of a habitual offender. Further, it appears that the contraband was seized while accused Nos.1 to 3 were carrying the same on two motor cars jointly and accordingly the offence under Section 29 of the NDPS Act also was incorporated. In fact, the rigour under Section 37 of the NDPS Act, has application in the case at hand.
8. In so far as grant of regular bail to the accused who was nabbed on the allegation of possession of commercial quantity of contraband, Section 37 of the NDPS Act would squarely apply. Section 37 of the NDPS Act provides as under: “37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 27A 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
9. On a perusal of Section 37(1)(a)(i), when the Public
Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and
(2) he will not commit any offence while on bail.
10. The Apex Court considered the meaning of
‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, Union of India v. Shiv Shankar Kesari and held that the expression ‘reasonable grounds’ 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.
11. It was further held that the Court while considering
the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
12. While considering the rider under Section 37 of the
NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotics Central Bureau v. R.Paulsamy [2000 KHC 1549: AIR 2000 SC 3661:
(2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 Cril LJ 117], Customs, New Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri)
834: 2004 (110) DLT 300: 2004 Cri LJ 1810: 2004 (166) ELT 302], Union of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 Cri LJ 3115: 2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 Cri LJ 3491: 2008(3) SCC (Cri) 29], Union of India v. Rattan Malik [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 Cri LJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], Union of India v. Niyazuddin [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], State of Kerala v. Rajesh [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is [2023 Cri LJ 799], Union of India v. Jitentra Giri.
13. On a plain reading of Section 37(1) (b) and 37(1)(b)
(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of
both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant
bail without recording satisfaction of the above twin ingredients.
14. On evaluation of the prosecution materials on par
with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore application for regular bail at the instance of the petitioner must fail. Hence this petition stands dismissed. However, there shall be a direction to the Special Court to consider expeditious disposal of the case since the matter has been pending for the last more than one year. Sd/- A. BADHARUDEEN JUDGE nkr