Dismissed

Abins v. State of Kerala

Kerala HC15 Mar 2023Bail Appl./1066/2023

Case brief

AI extract

What is this about?

In a bail application under Section 439 CrPC involving commercial quantity of Narcotics, the Kerala High Court held that granting bail requires satisfying the twin conditions of Section 37 NDPS Act when the Public Prosecutor opposes. Finding insufficient grounds, the court dismissed the bail petition.

What did the court decide?

Bail application dismissed; petitioner not liable to be released on bail as Section 37 NDPS Act conditions were not satisfied.

Abins Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2023)

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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 A. BADHARUDEEN

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WEDNESDAY, THE 15^TH DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 BAIL APPL. NO. 1066 OF 2023

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CRIME NO.40/2022 OF MUVATTUPUZHA EXCISE RANGE

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PETITIONER/ACCUSED NO.4 :

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ABINS AGED 25 YEARS, S/O.NAZAR, KARIKKINPARAMBIL HOUSE, CHEENKAL CITY KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685607 BY ADV NIREESH MATHEW

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR P G MANU - SR PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

B.A.No. 1066 of 2023

ORDER

Dated this the 15^th day of March, 2023

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This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 4^th accused in crime No.40/2022 of Muvattupuzha Excise Range.

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Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary along with detailed report submitted by the Investigating Officer.

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The prosecution allegation is that, accused Nos. 1 to 4 jointly transported 79.200 kilogram of Ganja, and the same was detected while they were transporting the contraband in a lorry bearing registration No.KL-38-E-7340, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act') and the same was taken into custody by the Excise party at 7.15 am on 10.09.2022. Accordingly, accused Nos. 1 to 4 were arrested and crime alleging commission of offences punishable under Section 20(b)(ii)(c), 29 and 60(3) of the NDPS Act was registered and is on investigation.

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The learned counsel for the petitioner would submit that, the petitioner is innocent. According to him, though

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B.A.No. 1066 of 2023

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commercial quantity of contraband was seized from the possession of the accused, taking note of the custody of the petitioners from 10.09.2022, he may be released on bail.

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Whereas the learned Public Prosecutor strongly opposed the grant of bail to the petitioner on the submission that, 79.200 kilogram of Ganja was seized from the possession of accused Nos. 1 to 4. Since the contraband is commercial quantity, this Court must satisfy the twin conditions while granting bail to the accused, who alleged to have possessed commercial quantity of contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in the facts of this case.

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No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under:

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37. Offences to be cognizable and non-bailable.--

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(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving

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B.A.No. 1066 of 2023

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commercial quantity shall be released on bail or on his own bond unless--

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(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.

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(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.

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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.

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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

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B.A.No. 1066 of 2023

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‘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.

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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.

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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 CrilLJ 117],

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B.A.No. 1066 of 2023

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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 CriLJ 1810: 2004 (166) ELT 302], Union of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 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 CriLJ 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 CriLJ 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]. Latest decision on this point is one reported in [2023 Crl.L J 799], Union of India v. Jitendra Giri .

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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

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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.

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Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail.

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Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail.

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Accordingly, this bail application stands dismissed.

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Sd/-

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A. BADHARUDEEN JUDGE

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Abins v. State of Kerala

Case brief

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Abins v. State of Kerala

Case brief

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