Two accused sought regular bail in an NDPS case involving seizure of 294 grams of MDMA from joint possession at a hotel room. The court held the Section 37 rider applied to commercial quantity offences, no change of circumstances was shown, complicity of all four accused was equal, and dismissed both bail applications.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 12TH DAY OF JANUARY 2024 / 22ND POUSHA, 1945
BAIL APPL. NO. 8027 OF 2023
CRIME NO.612/2023 OF Ernakulam North Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT SC 650/2023 OF I ADDITIONAL
DISTRICT COURT, ERNAKULAM
PETITIONER/ACCUSED NO.2:
NAVEEN P. R, AGED 24 YEARS S/O. RAJAN, PUTHENPURACKEL HOUSE, MANJUMMEL, ELOOR VILLAGE, ERNAKULAM DISTRICT, PIN – 683501.
BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 THE STATION HOUSE OFFICER, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT, PIN – 682018.
SR PUBLIC PROSECUTOR K DENNY DEVASSY.
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.12.2023 ALONG WITH B.A.NO.9090/2023, THE COURT ON 12.01.2024 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 12TH DAY OF JANUARY 2024 / 22ND POUSHA, 1945
BAIL APPL. NO. 9090 OF 2023
CRIME NO.612/2023 OF Ernakulam North Police Station,
Ernakulam
AGAINST THE ORDER/JUDGMENT SC 650/2023 OF I ADDITIONAL
DISTRICT COURT, ERNAKULAM
PETITIONER/ACCUSED NO.2:
ORDER DATED 25.08.2023 IN B.A.NO.5566/2023 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.4:
ADITHYA KRISHNAN, AGED 23 YEARS S/O KRISHNA KUMAR, THADIKKARAN BUILDING, MANJUMMEL, ELOOR VILLAGE, ERNAKULAM, PIN – 683501.
BY ADVS. LAL K.JOSEPH P.MURALEEDHARAN (THURAVOOR) T.A.LUXY SURESH SUKUMAR KOYA ARAFA MIRAGE ANZIL SALIM SANJAY SELLEN
RESPONDENTS/STATE & COMPLAINANT:
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.12.2023 ALONG WITH B.A.NO.8027/2023, THE COURT ON 12.01.2024 DELIVERED THE FOLLOWING:
B.A.No.8027 & 9090 of 2023 3
A. BADHARUDEEN, J.
================================
B.A .Nos.8027 and 9090 of 2023
================================ Dated this the 12 th day of January, 2024
C O M M O N O R D E R
The petitioner in B.A.No.8027 of 2023, who is the 2nd accused in Crime No.612/2023 of Ernakulam Town North Police Station, now pending as S.C.No.650/2023 before the First Additional District and Sessions Court, Ernakulam, has approached this Court for the first time seeking regular bail. The petitioner in B.A.No.9090 of 2023, who is the 4th accused in the above case,
seeks regular bail for the fourth time.
B.A.No.8027 & 9090 of 2023 4
information received on 29.03.2023 to the effect that, four persons engaged in possession of MDMA in Room No.317 of Sidra Pristine Hotel, SRM Road, Ernakulam, the police party conducted search at 16.20 hours on 30.03.2023 and on search, 294 grams of MDMA was seized in the presence of accused Nos.1 to 4. Thereafter, they were arrested and crime, alleging commission of offence punishable under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter), was registered.
B.A.No.8027 & 9090 of 2023 5
has been filed, as per the final report also, the allegations against the 2nd and 4th accused are not established and the final report as well as the seizure cum recovery mahazar would go to show that the 1st accused is the person, who dealt with the contraband, which was recovered from Sidra Pristine Hotel, SRM Road, Ernakulam, when the police party conducted search. It is argued further that since the role of the 2nd and 4th accused could not be established as per the final report, they are liable to be released on bail.
6 . The learned Public Prosecutor submitted that the specific allegation of the prosecution itself is that accused 1 to 4, after sharing common intention, as a joint venture, transported 294 grams of MDMA in a car bearing Registration No.KL 62B 3022 and kept the same in Sidra Pristine Hotel, for the purpose of sale and they were intercepted by the police jointly along with the contraband. Since the prosecution allegation is specific on the point that accused 1 to 4 committed the above offences, the argument at the instance of the learned counsel for the petitioners
B.A.No.8027 & 9090 of 2023 6
that the petitioners are innocent, as per the final report, is absolutely meritless. It is also submitted that there is no reason to read the complicity of the petitioners/2 nd and 4 th accused, in segregation, to hold that they are innocent to dilute the rigor under Section 37 of the NDPS Act.
7 . The second bail application of the petitioner, viz. B.A.No.9090/2023, was dismissed as observed in paragraphs 8 to
16 of B.A.No.3659/2023 a s under:
“8. Available materials do not suggest anything to hold that the petitioner is innocent, in a case involving red-handed recovery of commercial quantity of contraband from a Hotel room, on the basis of a secret information. In such case, the rigor under Section 37 of the NDPS Act, would squarely apply .
9. 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:
37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
B.A.No.8027 & 9090 of 2023 7
10. 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.
11. 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 ‘reasonable
B.A.No.8027 & 9090 of 2023 8
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.
12. 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.
13. 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], 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
B.A.No.8027 & 9090 of 2023 9
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]. The latest decision on this point is one reported in [2023 Crl.L.J.799], Union of India v. Jitendra Giri .
14. 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 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.
B.A.No.8027 & 9090 of 2023 10
15. 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.
16. 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.”
8 . Subsequently the third bail application filed by the petitioner in B.A.No.9090/2023, was dismissed observing as under in paragraphs 8 and 9 of the order in B.A.No.5566 of 2023:
“Even though the learned counsel for the petitioners attribute complicity of the 1 st accused alone in this crime, as per the prosecution records, it is emphatically clear that the prosecution received an information as to possession of contraband by accused 1 to 4 jointly, after transporting the same in a car bearing Reg.No. KL 62B 3022 and on the basis of the said information when search was conducted, 294 grams of MDMA was seized from the joint possession of accused 1 to 4, accordingly they were nabbed and this crime was registered. On reading the final report as a whole, the allegations against accused 1 to 4 is specific to the effect that they have jointly transported and possessed 294 grams of MDMA and thereby committed the above offences. In such a case, there is no reason to hold that the petitioners
B.A.No.8027 & 9090 of 2023 11
are innocent, as canvassed by the learned counsel for the petitioners.
8 . Therefore, the rider under Section 37 would apply in the matter of grant of bail as I observed in the earlier bail applications as narrated above. Therefore, this application must fail.”
9 . Since there is no change of circumstances shown by the
the petitioner in B.A.No.9090/2023, the same must fail. As far as the complicity of the 2 nd accused is concerned, the same is in parity with the 4 th accused as well as accused Nos.1 and 3, since the prosecution has a specific case that on the basis of information received on 29.03.2023 to the effect that accused Nos.1 to 4 jointly possessing contraband at Sidra Pristine Hotel, they were nabbed together red-handedly and, therefore, the complicity of accused Nos.1 to 4 is equal.
10. Since the rider under Section 37 of the NDPS Act would apply in this case, the bail applications deserve dismissal.
Accordingly, these Bail Applications stand dismissed.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
2 issues framed by the court
Whether the accused in possession of 294 grams MDMA (commercial quantity) could be released on bail despite the Section 37 NDPS Act restrictions.
Whether absence of changed circumstances barred a successive bail application by the 4th accused.
Colour shows how this judgement treated each authority
Union of India v. Shiv Shankar KesariRelied on¶7
(2007) 7 SCC 798 · Who else cites this
Superintendent, Narcotics Central Bureau v. R.PaulsamyRelied on¶7
[2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117] · Who else cites this
Customs, New Delhi v. Ahmadalieva NodiraRelied on¶7
[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. AbdullaRelied on¶7
[2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334] · Who else cites this
N.R.Mon v. Md.NasimuddinRelied on¶7
[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 MalikRelied on¶7
[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. NiyazuddinRelied on¶7
[2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738] · Who else cites this
State of Kerala v. RajeshRelied on¶7
[2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848] · Who else cites this
Union of India v. Jitendra GiriRelied on¶7
[2023 Crl.L.J.799]
2 provisions across 1 enactments
Naveen P. R
Adithya Krishnan
State of Kerala
Station House Officer, Ernakulam Town North Police Station
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
