Dismissed

Arun v. State of Kerala

Kerala HC16 Mar 2021Bail Appl./1585/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed two bail applications filed by accused persons charged with transporting commercial quantity of ganja under the NDPS Act. The Court held that statutory restrictions under Section 37 of the NDPS Act prevent bail unless reasonable grounds exist to believe the accused are not guilty, a condition not met here.

What did the court decide?

Applications for bail under Section 439 CrPC were dismissed as the statutory conditions under Section 37 NDPS Act were not satisfied.

Arun Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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'C'R'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

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Bail Appl..No.1585 OF 2021 CRIME NO.1118/2020 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha

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PETITIONER/S:

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ARUN AGED 24 YEARS ARCHANA BHAVAN, THITTAMEL, CHENGANNUR P.O., ALAPPUZHA 689121

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BY ADVS. SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SHRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.K.RAMAKUMAR (SR.)

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RESPONDENT/S:

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

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2 STATION HOUSE OFFICER AGED 45 YEARS THE STATION HOUSE OFFICER, ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA DISTRICT

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R1 BY PUBLIC PROSECUTOR

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OTHER PRESENT:

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SRI.SANTHOSH PETER SR PP

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON 16.03.2021 ALONG WITH Bail Appl..1977/2021 PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

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Bail Appl..No.1977 OF 2021

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CRIME NO.1118/2020 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha

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PETITIONER/S:

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ANANTHU KUMAR AGED 24 YEARS ULLAS BHAVANAM, KARAKKAD P.O, CHENGANNUR, ALAPPUZHA NORTH, ALAPPUZHA 689504

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BY ADV. SRI.P.THOMAS GEEVERGHESE

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RESPONDENT/S:

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

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R1 BY PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.03.2021,, THE COURT ON 16.03.2021 ALONG WITH Bail Appl..1585/2021 PASSED THE FOLLOWING:

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BA Nos.1585/2021 & 1977/2021

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'C'R'

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COMMON ORDER

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[ Bail Appl..1585/2021, Bail Appl..1977/2021 ] Dated, this the 16th day of March 2021

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Applications for regular bail under Section 439 of Cr.P.C.

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The applicant in B.A No. 1585/2021 is the 2nd

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accused while the applicant in B.A. No. 1977/2021 is the 3rd

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accused in Crime No.1118/2020 of Alappuzha North Police

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Station, for having allegedly committed offences punishable

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under Section 20(b) (ii) (C) of the Narcotic Drug and

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Psychotropic Substance Act, 1985.

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The prosecution case, in brief, is that on 16.11.2020

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on receiving a secret information about the movement of

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BA Nos.1585/2021 & 1977/2021

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drugs, the Sub Inspector of Police attached to Alappuzha North Police Station, Sri.Tolson P. Joseph intimated his superior

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officer, the DYSP, and proceeded to intercept an Innova car bearing registration No.KL-03-Y-6776. There were three

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persons in the car. They were searched in accordance with law,

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nothing was recovered from their body, but the dickey of the car contained two bags concealed under the carpet and on inspection of that, it contained 24.560 kgs of ganja, a commercial quantity. The contraband was seized and the persons travelling in the car were arrested and arrayed as accused. The contraband was allegedly being brought from

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places like Arkkavalley in Andhra Pradesh, Coimbatore and

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Bangalore.

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BA Nos.1585/2021 & 1977/2021

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The second accused states that he was arrested not

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from Alappuzha, but from Thrissur. He was not present in the

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vehicle at the time of seizure. He was neither the owner of the

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vehicle. He has no criminal antecedents. His bail application filed before the Session's Court Alapuzha, was dismissed.

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The third accused states that he is a cook in Cafe de Arabia, Ernakulam. He was returning for his work from

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Alappuzha and had requested the 2nd accused, who is known

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to him for a gratuitous lift in the car. Accordingly, he travelled in the car as a gratuitous passenger and he did not know about

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the ganja concealed inside the car. He submits that he is totally

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unaware of the transportation of ganja and has nothing to do

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with it, and hence not in conscious possession of the

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BA Nos.1585/2021 & 1977/2021

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contraband. He too has no criminal antecedents and therefore,

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seeks bail. This is his second application for bail. His earlier

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application, B.A. No. 607/2021, was dismissed by the court.

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Heard the learned Senior Counsel Sri K. Ramakumar

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for the second accused and Adv. Sri P. Thomas Geeverghese

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for the third accused. The learned Public Prosecutor, Sri.

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Santhosh Peter, opposed the applications with all vehemence.

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The learned Senior Counsel Sri Ramkumar submits that

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the first accused has already been granted bail by a different

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Bench of this Court vide Order in B.A.No. 520/2021, and hence

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similarly placed second accused is also entitled to bail. The

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learned counsel Sri.Thomas appearing for the third accused,

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refers to the granting of bail to the first accused as a change in

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BA Nos.1585/2021 & 1977/2021

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circumstances to seek bail in his successive application for

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bail.

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It is further pointed out by the learned counsel

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appearing for the third accused that even though the FIR and

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the FI statement indicate that the detecting officer is the Sub

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Inspector, Sri Tolson P. Joseph, attached to the Alappuzha

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North Police Station, the remand report which is produced

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indicates that Sri.K.P. Vinod, Inspector of the Alappuzha North

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Police Station is the detecting officer. This discrepancy is a

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vital flaw in the prosecution case. I had the opportunity to

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discuss in great detail this aspect pointed out by the counsel

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and had overruled his objection. In this successive application

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for bail, it may not be appropriate to reconsider the points

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BA Nos.1585/2021 & 1977/2021

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which has already been decided by this court. An accused has

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right to make successive applications for grant of bail. But, the

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Court entertaining such subsequent bail applications has a

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duty to consider the reasons and grounds on which the earlier

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bail applications were rejected. In such cases, the Court also

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has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the

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earlier applications (See Kalyan Chandra Sarkar v. Rajesh

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Ranjan, [2004 KHC 754 : AIR 2004 SC 1866] ).

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The learned Senior Counsel has relied on the decision

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of the Apex Court in Union of India v. K.A. Najeeb [2021(1)

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KLD 344(SC)] in support of his argument that presence of

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statutory restrictions in the NDPS Act per se does not oust

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BA Nos.1585/2021 & 1977/2021

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ability of Constitutional Courts to grant bail. I have gone through the decision of the Apex Court. The statutory restrictions in granting bail under Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) was being considered. The trial Court had in that case, granted bail to the under-trial accused, who was absconding and his case split up while trial had proceeded and concluded against the remaining

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accused. He was remanded on his apprehension at a later point

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in time, and was in detention for more than five years as under

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trial. There were 276 witnesses to be examined. Charges were

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framed only on 27/11/2020. Thirteen co-accused who had

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faced trial in the parent case, were convicted and none of them

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were given a sentence of more than eight years' rigorous

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BA Nos.1585/2021 & 1977/2021

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imprisonment. It can therefore be legitimately expected that if found guilty, this accused too would receive a sentence within

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the same ballpark. Given that two-third of such incarceration is already complete, it appeared that the accused has already paid heavily for his acts of fleeing from justice. It is under such circumstances that the accused therein was granted bail. The situation here is totally different. Section 43D(5) of UAPA is comparatively less stringent than S.37 of the NDPS Act. Unlike

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in NDPS Act, where the competent Court needs to be satisfied

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that there are reasonable grounds to believe that the accused

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is not guilty and that he is unlikely to commit another offence

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while on bail; there is no such provision under the UAPA, which

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merely provides another possible ground for competent Court

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BA Nos.1585/2021 & 1977/2021

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to refuse bail, in addition to the well-settled considerations

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like gravity of offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading trial by absconsion etc;( see K.A.Najeeb Supra) .

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The Apex Court has in Union of India v. Merajuddin.

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[1999 KHC 3934 : 1999 (6) SCC 43] while considering an

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appeal over granting of bail by the High Court ignoring the

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mandate of S.37 NDPS act observed thus:

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“3. The respondent is accused of an offence under the NDPS Act, 1985. The High Court appears to have completely ignored the mandate of S.37 of the Narcotic Drugs and Psychotropic Substances Act while granting him bail. The High Court overlooked the prescribed procedure. That was not proper. We, therefore, allow this appeal and set aside the impugned order of the High Court and

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BA Nos.1585/2021 & 1977/2021

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cancel the bail granted to the respondent.”

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In Union of India v. Ram Samujh and Another [1999 KHC 1542 : 1999 (9) SCC 429] also the importance of considering

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the mandate under S.37 NDPS Act is reiterated as thus:

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“5. The jurisdiction of the court to grant bail is circumscribed by the provision of S.37 of the NDPS Act. It can be granted in a case where there are reasonable grounds for believing that the 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.”

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The Hon'ble Supreme Court had an opportunity to

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consider another appeal from this High Court granting bail to

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an accused ignoring the rigour of S.37 of the NDPS Act, in

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BA Nos.1585/2021 & 1977/2021

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State of Kerala Etc. v. Rajesh Etc.. [2020 (1) KHC 557] and held

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thus:

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“20. The scheme of S.37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S.439 of the CrPC, but is also subject to the limitation placed by S.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.

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The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable

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BA Nos.1585/2021 & 1977/2021

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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 thetime being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

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We may further like to observe that the learned Single Judge has failed to record a finding mandated under S.37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act. “

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Coming to the argument regarding entitlement of

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the applicants on the grounds of parity in granting of bail to

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BA Nos.1585/2021 & 1977/2021

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the first accused, it is observed that the Bench which decided

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that bail application did not consider the rigour and the implications under Section 37(1) (b) (ii) of the NDPS Act, and a plethora of precedents of the Apex Court on the point. Hence

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the finding of this Court in B.A.No. 520/2021 is per incuriam, and the applicants cannot seek any benefit based on that

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order. This concept is well explained in a catena of decisions

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of the Apex Court. I would refer to a couple of them.

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In Punjab Land Development and Reclamation

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Corpn. Ltd. v. Presiding Officer, Labour Court, [(1990) 3 SCC

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682 : 1991 SCC (L&S) 71], the binding nature of precedents is discussed, and held as thus:

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“ 40. We now deal with the question of per

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BA Nos.1585/2021 & 1977/2021

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incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd. v. State of Bihar [(1955) 2 SCR 603 : AIR 1955 SC 66 : (1955) 6 STC 446] , it was held that the words of Article 141, “binding on all courts within the territory of India”, though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. ”

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In V. Kishan Rao v. Nikhil Super Speciality Hospital, [(2010) 5

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SCC 513 : (2010) 2 SCC (Civ) 460 ], it was observed thus :

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BA Nos.1585/2021 & 1977/2021

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“54. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered per incuriam. This concept of per incuriam has been explained in many decisions of this Court. Sabyasachi Mukharji, J. (as his Lordship then was) speaking for the majority in A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] explained the concept in the following words : (SCC p. 652, para 42)

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“42. … ‘Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.””

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14. Having anxiously considered the entire facts and

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circumstances of this case and the submissions made on either

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BA Nos.1585/2021 & 1977/2021

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side, I find that on facts, the applicants were caught red-

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handed while transporting commercial quantity of ganja.

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