Bail applications by accused in an NDPS case involving seizure of 52.5 grams of methamphetamine from a car, a commercial quantity. The court found sampling complied with Section 52A and no reasonable grounds to believe innocence; dismissed both applications.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 14TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945
BAIL APPL. NO. 33 OF 2024
CRIME NO.11/2023 OF NILAMBUR EXCISE RANGE OFFICE, MALAPPURAM
PETITIONER/ACCUSED NO.1:
ABDUL SHAREEF,
AGED 29 YEARS
S/O. ABDUL LATHEEF, VALIYAVEETTIL HOUSE,
KUTTIPPALA-KANTHALLOOR DESOM, VATTAMKULAM
VILLAGE, PONNANI TALUK, MALAPPURAM DISTRICT,
PIN - 679578
BY ADV R.RANJITH (MANJERI)
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
BY ADV
SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
14.03.2024, ALONG WITH Bail Appl. No.972/2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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BAIL APPL. NOs.33 OF 2024 &
972 OF 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 14TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945
BAIL APPL. NO. 972 OF 2024
CRIME NO.11/2023 OF NILAMBUR EXCISE RANGE OFFICE, MALAPPURAM
AGAINST THE ORDER/JUDGMENT DATED 20.12.2023 IN SC NO.1123
OF 2023 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST),
MANJERI
PETITIONER/ACCUSED NO.1:
SALEEM T.K
AGED 35 YEARS
S/O KUNJIMARAKKAR, THEKKINITHETHIL HOUSE,
PADINJARANGADI P.O, PALAKKAD DISTRICT,
PIN - 679552
BY ADVS.
ANAND KALYANAKRISHNAN
C.DHEERAJ RAJAN
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
BY ADV
SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
14.03.2024, ALONG WITH Bail Appl..33/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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BAIL APPL. NOs.33 OF 2024 & 972 OF 2024
C.S.DIAS, J.
B.A. No. 33 OF 2024 &
B.A. No. 972 OF 2024
------------------------------------------------------Dated this the 14th day of March, 2024
C O M M O N O R D E R
The applications are filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 1 and 3 in Crime No.11/2023 of the Nilambur Excise Range Office, Malappuram, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). The petitioners were arrested on 13.03.2023.
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BAIL APPL. NOs.33 OF 2024 &
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were found travelling in a motor car bearing Reg. No. KL 52 S 4918 at Palad Desom in Vazhikkadavu Amsom. The vehicle was intercepted by the Excise party and in the search that was conducted, 52.5 grams of MDMA was seized from the music system of the vehicle. Thus, the accused have committed the above offences.
Court to the Final Report (complaint) laid by the
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Investigating Officer which shows that, even though there is an allegation that the first accused had received an amount of Rs.42,000/- (Rupees forty two thousand only), the investigation has unveiled that was a transaction with one Aboobackar Siddique, which has nothing to do with the present crime. Similarly, even though there was an allegation that the third accused went to Banglore after receiving Rs.20,000/(Rupees Twenty thousand only), he does not even have a bank account. The third accused was only a paid driver of the first accused and there is no material to show his involvement in the crime. Both the learned counsel submitted that in the Final Report that was served on the accused, the copy of the 52A certification does not have the certification of the jurisdictional Magistrate as contemplated under Section 52A of the Act. Moreover, in the chemical
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analysis that was conducted, it has turned out that the contraband is not MDMA but a only methamphetamine. In any given case, the petitioners have been in judicial custody since 13.03.2023, which is one year. The investigation in the case is complete and the recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the applications may be allowed.
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BAIL APPL. NOs.33 OF 2024 &
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belonging to the first accused. The accused 1 to 3 had travelled all the way from Nilambur to Banglore and returned back in the same vehicle. It was the third accused who drove the vehicle. There are incriminating materials to show that there was conspiracy hatched between the accused 1 to 3. It was in the said background that Section 29 of the Act has been incorporated. Whether there has been infraction of Sections 42, 50 and 52A of the Act is a matter of trial. Merely, because the petitioners have been in judicial custody for nearly a year, is not a ground to dilute the rigour under Section 37 of the Act. If the petitioners are released on bail, there is every likelihood of them committing a similar offence. Hence, the applications may be dismissed.
that, the accused 1 to 3 had travelled from Nilambur
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to Banglore and purchased the contraband article and brought it to the State of Kerala. While they were travelling together in the car belonging to the first accused, that the Excise party intercepted the vehicle and conducted a search in the vehicle and seized the contraband articles, which was suspected to be MDMA. In the chemical analysis, it has turned out that the contraband is methamphetamine and not MDMA. However, the fact remains that the quantity of the contraband is 52.5 grams of MDMA.
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the petitioners was that there is no material to link the complicity of the petitioners in the above crime. Indisputably, the car from which the contraband was seized belongs to the first accused. There is cogent materials on record to show that the accused 1 to 3 had travelled in the car to Banglore and returned to Nilambur in the same car. It was when the three accused were travelling in the same vehicle, that the vehicle was intercepted, the search was conducted and the contraband was seized. Whether there is a violation of Sections 42 and 50 is a disputed question of the Act. The fact remains that the Final Report has been laid, showing the involvement of the petitioners in the crime.
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under Section 37 of the Act applies.
“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 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.”
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972 OF 2024
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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”.
15. In Union of India v. Mohd. Nawaz Khan
[(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that:
“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 have been prescribed”.
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“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
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released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”
matrix, the rival submissions made across the Bar, the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, the potential severity of the punishment that is likely to be imposed on the them, the commercial quantity of the contraband that is involved in the case, I am at the stage satisfied that there are reasonable grounds to hold that the petitioners are guilty of the offence alleged against them and that they are likely to commit a similar offence, if they are enlarged on bail. Therefore, there are no convincing grounds to dilute the rigour under
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Section 37 of the Act. The applications are meritless and are only to be rejected.
Resultantly, the applications are dismissed.
Sd/C.S. DIAS JUDGE
BR
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APPENDIX OF BAIL APPL. 33/2024
PETITIONER’S ANNEXURES
Annexure ATRUE COPY OF THE CRIME AND OCCURRENCE
REPORT IN CRIME NO.11/2023 OF THE
EXCISE RANGE OFFICE, NILAMBUR
Annexure BTRUE COPY OF THE CHEMICAL ANALYSIS
REPORT IN CRIME NO.11/2023 OF THE
EXCISE RANGE OFFICE, NILAMBUR
Annexure CTRUE COPY OF THE LIST OF REPRESENTATIVE
SAMPLE TAKEN AS PER SECTION 52A(2)(C)
FROM THE THONDY ARTICLES OF NDPS CRIME
NO.11/2023 OF THE EXCISE RANGE OFFICE,
NILAMBUR ALONG WITH THONDI LIST
Annexure DTRUE COPY OF THE APPLICATION FOR
DISPOSAL OF SEIZED NARCOTIC DRUGS,
PSYCHOTROPIC SUBSTANCES, CONTROLLED
SUBSTANCES AND CONVEYANCES UNDER
SECTION 52A (2) OF THE NDPS ACT
RESPONDENT’S ANNEXURES: NIL
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BAIL APPL. NOs.33 OF 2024 &
972 OF 2024
APPENDIX OF BAIL APPL. 972/2024
PETITIONER’S ANNEXURES
Annexure 1THE TRUE COPY OF THE OCCURRENCE REPORT
IN CRIME 11/2023 OF NILAMBUR EXCISE
RANGE OFFICE DATED 13.03.2023
Annexure 2THE TRUE COPY OF THE CHEMICAL ANALYSIS
REPORT DATED 24.06.2023 ISSUED BY
CHEMICALEXAMINER'SLABORATORY
DEPARTMENT
Annexure 3THE APPLICATION FOR DISPOSAL OF SEIZED
NARCOTICS DRUGS PREFERRED BY THE
DETECTING OFFICER DATED 15.03.2023
Annexure 4THE TRUE COPY OF ANNEXURE 1 INVENTORY
FORM DATED 15.03.2023
Annexure 5THE TRUE COPY OF THE LIST OF
REPRESENTATIVE SAMPLES TAKEN AS PER
SECTION 52A(2)(C)
Annexure 6THE CERTIFIED COPY OF THE ORDER DATED
20.12.2023 IN CMP NO 03/2023 IN S.C
1123/2023 ON THE FILES OF SPECIAL COURT
FOR SC/ST(POA) ACT AND NDPS CASES,
MANJERI
RESPONDENT’S ANNEXURES: NIL
2 issues framed by the court
Whether the petitioners could be granted bail for offences involving a commercial quantity of contraband under the NDPS Act despite the Section 37 twin conditions.
Whether non-certification or sampling not before the jurisdictional Magistrate under Section 52A NDPS Act vitiated the case against the petitioners.
Colour shows how this judgement treated each authority
Union of India v. Shiv Shanker KesariRelied on¶14
[(2007) 7 SCC 798] · Who else cites this
Union of India v. Mohd. Nawaz KhanRelied on¶15
[(2021) 10 SCC 100] · Who else cites this
Prasanta Kumar Sarkar v. Ashis ChatterjeeRelied on¶17
[(2010) 14 SCC 496] · Who else cites this
4 provisions across 2 enactments
Abdul Shareef
Saleem T.K
State of Kerala
C.S. Dias
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court