Adithya Krishnan vs State Of Kerala

A. Badharudeen, J

This is the third bail application for regular bail, filed by the 4th accused in Crime No.612/2023 of Ernakulam Town North Police Station.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

I have perused the relevant records.

The prosecution allegation is that, based on a secret information 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 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.

The learned counsel for the petitioner would submit that the petitioner is innocent and he was nabbed without any justification. The learned counsel would submit that the 2nd and 3rd accused are neighbourhood friends of the 4th accused (petitioner) and the petitioner is a student, studying in Munnar Catering College. It is also submitted that, nothing recovered from the conscious possession of the 4th accused. The learned counsel for the petitioner argued that even though after investigation, final report has been filed, as per the final report also, the allegation against the 4th accused is 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 4th accused could not be established as per the final report, he is liable to be released on bail.

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 petitioner that the petitioner is innocent, as per the final report, is absolutely meritless. It is also submitted that there is no reason to read the complicity of the petitioner/4th accused, in segregation, to hold that he is innocent to dilute the rigor under Section 37 of the NDPS Act.

Initially the bail application of the petitioner was dismissed as observed in paragraphs 8 to 16 of B.A.No.3659/2023 as 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.

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:

Offences to be cognizable and non-bailable.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 27A 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

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.

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 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.

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.

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 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.

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.

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.

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.”

Even  though  the  learned  counsel  for  the  petitioner attributes complicity of the 1st 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 petitioner is innocent, as canvassed by the learned counsel for the petitioner.

Therefore, the rider under Section 37 would apply in the matter of grant of bail as I observed in the earlier bail application as narrated above. Therefore, this application must fail.

Accordingly, the Bail Application stands dismissed.