The High Court at Ernakulam, in bail application No.5107 of 2020, refused bail to an accused implicated in a narcotic drug trafficking case under the NDPS Act. The Court held that the commercial quantity and the mandate of Section 37 of the NDPS Act precluded bail.
Application for bail under Section 439 Cr.P.C. dismissed; applicant not granted bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
Bail Appl..No.5107 OF 2020
CRIME NO.645/2020 OF Kaduthuruthi Police Station , Kottayam
PETITIONER/S:
NIBUMON @ APPU AGED 38 YEARS CHOORAKATTU HOUSE, KUMARANALLOOR KARA, PERUMBAIKAD VILLAGE, KOTTAYAM TALUK, PRESENTLY RESIDING IN A RENTED HOUSE AT CHUNKOM, KOTTAYAM, KOTTAYAM PIN686016
BY ADV. SRI.SOJAN MICHEAL
RESPONDENT/S:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM 682031
R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SMT.K.K.SHEEBA -PP
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16.10.2020, THE COURT ON 18.12.2020 PASSED THE FOLLOWING:
BA 5107/2020
2
O R D E R
Dated this the 18th day of December 2020
Application for bail under Section 439 Cr.P.C.
The applicant is the 3rd accused in Crime No. 645/2020 of
the Kaduthuruthy Police Station for having allgedly committed an offence punishable under under Sections 20(b)(ii) C and 29 of the Narcotic Drugs and Psychotic Substances Act ('NDPS
Act', for short).
at about 00.05 hrs near Kurupuntharra bus stand, the police intercepted the National Permit lorry bearing registration no.
KL-05-AM-4788 driven by the 1st accused and 2nd accused as
the co-driver. On search of the lorry, 59.5 kilograms of ganja
BA 5107/2020
3
was seized from the tool box. The crime was registered
alleging offences punishable under Sections 20(b) (ii) C, 25 and
29 of the NDPS Act. The applicant was implicated as A3 as he
is the registered owner of the lorry in which A1 and A2 were
allegedly found transporting ganja. They were arrested from
the spot. The applicant was arrested on 23.06.2020, and has
been since then in judicial custody. He has no criminal antecedents. It is contended that he has nothing to do with the
trafficking of drug by the accused 1 and 2.
Prosecutor. Records perused.
applicant had financed for the purchase of the ganja through A1 and A2. Without the financial support of the applicant, A1
4
BA 5107/2020
and A2 could not have acquired such huge quantity of Ganja.
In answer to this, the applicant's counsel submits that the only
money he had transferred from his wife's account was towards payment of diesel charges. He has produced the Bank
statements in support of his submission.
investigation has revealed that the applicant had direct contact
with the dealer of Ganja. The statements of A1 and A2
supported by corroborative materials would establish that.
Moreover, it is submitted that the accused were in possession
of commercial quantity of Ganja, and that would attract the
mandate under Section 37(1)(b)(ii) of the NDPS Act. The
jurisdiction of the Court to grant bail is circumscribed by the
provisions of Section 37 of the NDPS Act. It can be granted in
5
BA 5107/2020
case there are reasonable grounds for believing that accused is
not guilty of such offence, and that he is not likely to commit
any offence while on bail. It is the mandate of the Legislature
which is required to be followed. In State of Kerala Etc. v.
Rajesh Etc [2020 (1) KHC 557 ],the Hon'ble Supreme Court has
held thus:
“21. 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 S.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
BA 5107/2020
6
approach in the matter of bail under the NDPS Act is indeed uncalled for.”
In view of the above, it is not possible for this court to
grant bail to the applicant overlooking the mandate under
Section 37 of the NDPS Act. The prosecution has time to
further investigate the case and unravel the truth. The
applicantion is therefore, dismissed.
Sd/-
ASHOK MENON
JUDGE
jg
2 issues framed by the court
Whether bail can be granted to the applicant under Section 439 Cr.P.C. in a case involving commercial quantity of drugs under the NDPS Act.
Whether the applicant's claim of no involvement in drug trafficking is sufficient to meet the high threshold for bail under Section 37 of the NDPS Act.
Colour shows how this judgement treated each authority
State of Kerala Etc. v. Rajesh EtcReferred¶64
State of Kerala Etc. v. Rajesh Etc [2020 (1) KHC 557]
4 provisions across 2 enactments
NIBUMON @ APPU
STATE OF KERALA
ASHOK MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
