Dismissed

Sanoop v. State of Kerala Represented by Public Prosecutor, High Court of Kerala, Ernakulam

Kerala HC4 Sept 2023Bail Appl./3202/2022

Case brief

AI extract

What is this about?

This bail application involved an accused charged under the NDPS Act for transporting ganja. The High Court denied bail, holding that the accused was in conscious possession of commercial quantity drugs and reasonable grounds to believe innocence were not established under Section 37.

What did the court decide?

Bail application dismissed; petitioner not entitled to release on bail.

Sanoop Vs State of Kerala Represented by Public Prosecutor… — 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 GOPINATH P.

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MONDAY, THE 4TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945

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BAIL APPL. NO. 3202 OF 2022

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AGAINST THE ORDER IN SC 1252/2021 OF ADDITIONAL DISTRICT COURT

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(ADHOC), THRISSUR

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CRIME NO.758 OF 2021 OF CHALAKKUDY POLICE STATION

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PETITIONER/2ND ACCUSED:

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SANOOP

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AGED 23 YEARS
S/O. SHAJU, KOLLAMPARAMBIL HOUSE, MADAVANA, KUMBALAM
VILLAGE, ERNAKULAM DISTRICT., PIN - 682040
BY ADV ANITHA MATHAI MUTHIRENTHY

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RESPONDENT/COMPLAINANT:

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

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BY ADVS.

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ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)

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SRI. C K SURESH (SR GP)

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BAIL APPL. NO. 3202 OF 2022 2

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ORDER

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The petitioner is the 2^nd accused in Crime No.758 of 2021 of Chalakkudy Police Station, alleging commission of offence under Section 20(b)(ii)C of the NDPS Act, which is now pending as S.C.No.1252 of 2021 on the file of the Second Additional District and Sessions Court, Thrissur. The allegation against the petitioner is that the petitioner along with the other accused had transported a quantity of 178.900 Kgs of Ganja in a vehicle bearing registration No.KL-46-N-6060 and had thereby committed the offences alleged against them.

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The learned counsel appearing for the petitioner would submit that the petitioner is absolutely innocent of the allegations levelled against him. It is submitted that the petitioner is alleged to be the owner of the vehicle and was not in any manner involved in the transportation of Ganja in the said vehicle. It is submitted that the petitioner has been in custody from 07.10.2021 and is therefore in custody for nearly two years. It is submitted that since the investigation has been completed and a final report has already been filed

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BAIL APPL. NO. 3202 OF 2022 3

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in the matter, it is not necessary to continue the petitioner in custody. It is submitted that there are no criminal antecedents reported against the petitioner and there is no possibility of the trial being completed within a reasonable time. It is also submitted that petitioner’s mother is now bed-ridden and he intends to be with her for some days to restore her health. It is submitted in such circumstances, going by the judgment of this Court in Fasil v. State of Kerala [2023(3) KHC 212], the petitioner is entitled to be released on bail notwithstanding the conditions in Section 37 of the NDPS Act.

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The learned Public Prosecutor vehemently opposes the grant of bail. He refers to the facts of the case and submits that this is a case where the petitioner was found in conscious possession of a huge quantity of Ganja, which was being transported in a vehicle owned by the petitioner. It is submitted that the contention of the petitioner that the petitioner, who is the owner of the vehicle had no knowledge that Ganja was being transported in the vehicle is difficult to accept. It is submitted that when

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BAIL APPL. NO. 3202 OF 2022 4

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conscious possession of narcotic drugs is alleged, the petitioner cannot get over the condition in Section 37 of the NDPS Act that bail can be granted only if the court has reasonable grounds to believe that the accused is not guilty of the offences alleged against him. The learned Public Prosecutor places reliance on the judgment of the Supreme Court in State by (NCB) Bengaluru and Others v. Pallulabid Ahmed Arimutta and Others [2022(1) KHC 853] to contend that when conscious possession of commercial quantity of psychotropic substance is established, it is impossible for the Court to take the view that there are reasonable grounds to believe that the accused is not guilty of the offences alleged against him. The learned Public Prosecutor also places reliance on the judgment of the Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal [2022 KHC 6720] to contend that the term ‘reasonable grounds‘ used in Clause (b) of subsection (1) of Section 37 of the NDPS Act would mean credible and plausible grounds for the court to believe that the accused person is not guilty of the alleged offences. It is submitted that the aforesaid decision is the authority for the

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BAIL APPL. NO. 3202 OF 2022 5

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proposition that facts and circumstance must exist in a case to persuade the court to believe that the accused person would not have committed such an offence. It is submitted that in the facts and circumstances of this case, there are no grounds to believe that the petitioner is not guilty of the offences alleged against him. It is submitted that the judgment of this Court in Fasil (supra) has already been challenged by the State before the Supreme Court and taking into consideration of the law laid down in the judgments of the Supreme Court referred to above, which were not noticed in the judgment in Fasil (supra), it may not be possible for this Court to direct the release of the petitioner in this case on bail on the authority of Fasil (supra).

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Having heard the learned counsel for the petitioner and the learned Public Prosecutor and having regard to the facts and circumstances of this case, I am of the view that the petitioner is not entitled to be released on bail. The facts of the case show that the petitioner was the owner of the vehicle, which was carrying a huge quantity of

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BAIL APPL. NO. 3202 OF 2022 6

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ganja, it cannot therefore be said that the petitioner was not in conscious possession of the contraband in question. The statement of the petitioner that he was alleged to be the owner of the vehicle and was not aware that such huge quantity of Ganja was being transported in the vehicle, cannot be accepted at this stage. The law laid down by this Court in Fasil (supra) does not compel me to take a view in favour of the petitioner as the judgments of the Supreme Court in Mohit Aggarwal (supra) and Pallulabid Ahmed Arimutta (supra) appear to be authority for the proposition that the provisions of Section 37 of the NDPS Act create an embargo on granting bail to accused in offences involving commercial quantities of narcotic drugs unless the twin conditions are clearly satisfied. From the facts and circumstances of this case, I am not able to hold that there are reasonable grounds to believe that the petitioner is not guilty of the offences alleged against him even if I were to hold that the absence of criminal antecedents would indicate that the second condition in Section 37 of the NDPS Act can be said to be satisfied in the facts of this case. Since it is settled law that both the conditions in Section 37 of the

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BAIL APPL. NO. 3202 OF 2022 7

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NDPS Act must be cumulatively satisfied, I am not inclined to grant bail to the petitioner. The bail application fails and it is accordingly dismissed. It is made clear that the observations made in this order are only for the purpose of considering the entitlement of the petitioner for bail and shall not prejudice the petitioner in the trial of the case.

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Sd/-

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GOPINATH P.

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JUDGE

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ajt

Sanoop v. State of Kerala Represented by Public Prosecutor, High Court of Kerala, Ernakulam

Case brief

What is this about?

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Sanoop v. State of Kerala Represented by Public Prosecutor, High Court of Kerala, Ernakulam

Case brief

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What did the court decide?

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