High Court of Kerala rejected bail application for second accused charged with transporting ganja under NDPS Act, holding that ownership of vehicle implies conscious possession and no reasonable grounds exist to believe accused is innocent.
Bail application dismissed; grant of bail directed refused.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 4TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945
BAIL APPL. NO. 3202 OF 2022
AGAINST THE ORDER IN SC 1252/2021 OF ADDITIONAL DISTRICT COURT
(ADHOC), THRISSUR
CRIME NO.758 OF 2021 OF CHALAKKUDY POLICE STATION
PETITIONER/2ND ACCUSED:
SANOOP
AGED 23 YEARS
S/O. SHAJU, KOLLAMPARAMBIL HOUSE, MADAVANA, KUMBALAM
VILLAGE, ERNAKULAM DISTRICT., PIN - 682040
BY ADV ANITHA MATHAI MUTHIRENTHY
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
SRI. C K SURESH (SR GP)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 3202 OF 2022 2
ORDER
The petitioner is the 2nd 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.
BAIL APPL. NO. 3202 OF 2022 3
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.
BAIL APPL. NO. 3202 OF 2022 4
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
BAIL APPL. NO. 3202 OF 2022 5
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).
BAIL APPL. NO. 3202 OF 2022 6
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
BAIL APPL. NO. 3202 OF 2022 7
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.
Sd/-
GOPINATH P.
JUDGE
ajt
2 issues framed by the court
Whether the petitioner is entitled to bail despite owning the vehicle used to transport commercial quantities of ganja.
Whether reasonable grounds exist to believe the accused is not guilty of offences under Section 37 of the NDPS Act.
Colour shows how this judgement treated each authority
Fasil v. State of KeralaDistinguished¶23
Fasil v. State of Kerala [2023(3) KHC 212]
State by (NCB) Bengaluru and Others v. Pallulabid Ahmed Arimutta and OthersFollowed¶25
State by (NCB) Bengaluru and Others v. Pallulabid Ahmed Arimutta and Others [2022(1) KHC 853]
Narcotics Control Bureau v. Mohit AggarwalFollowed¶25
Narcotics Control Bureau v. Mohit Aggarwal [2022 KHC 6720]
1 provisions across 1 enactments
SANOOP
STATE OF KERALA
GOPINATH P.
As recorded by the court registry
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