Second accused in an NDPS case involving seizure of 0.732 gms LSD, a commercial quantity, from co-accused sought bail under Section 439 CrPC alleging false implication. Court held Section 37 twin conditions unmet given gravity, punishment severity and commercial quantity; dismissed the bail application.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 13TH DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 BAIL APPL. NO. 11617 OF 2023
CRIME NO.668/2023 OF ALUVA WEST POLICE STATION (ALANGAD), ERNAKULAM
PETITIONER/2ND ACCUSED:
NIBIN, AGED 28 YEARS S/O NARAYANAN, KALLIKKAT HOUSE, KARA, PUTHIYAROAD, KODUNGALLUR, THRISSUR, PIN - 680666 BY ADV MANSOOR ALI
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SR PP SMT NEEMA T V
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O R D E R
The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, the Code), by the second accused in Crime No.668/2023 of the Aluva West Police Station (Alangad), Ernakulam, registered against the accused (2 in number) for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘Act’). The petitioner was arrested on 22.12.2023.
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offences. Thus, the accused have committed the above offence.
appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondents.
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the petitioner may be released on bail.
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petitioner is not entitled to be released on bail.
“37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be
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released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (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. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
9. A plain reading of the above provision
demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act.
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“7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression 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”.
“23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act
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have been prescribed”.
“9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii)
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reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS
JUDGE
shg
1 issue framed by the court
Whether the second accused in an NDPS case involving commercial quantity of LSD satisfied the twin conditions under Section 37 to be released on bail.
Colour shows how this judgement treated each authority
Union of India v. Shiv Shanker KesariRelied on¶10
(2007) 7 SCC 798 · Who else cites this
Union of India v. Mohd. Nawaz KhanRelied on¶11
(2021) 10 SCC 100 · Who else cites this
Prasanta Kumar Sarkar v. Ashis ChatterjeeRelied on¶13
(2010) 14 SCC 496 · Who else cites this
3 provisions across 2 enactments
Nibin
State of Kerala
C.S.Dias
As recorded by the court registry
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