Ajin Achankunju vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 7th accused in Crime No.19/2023 of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 8(C), 22(C), 20(b) (ii) (c), 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “ the NDPS Act”). The petitioner was arrested on 13.11.2023.

The essence of the prosecution case is that: on 9.7.2023, at around 19 hours, the accused had hatched a criminal conspiracy and the accused 1 to 4 were found in possession of 155.480 kg of ganja and 70.71 grams of MDMA, for the purpose of sale, which were seized from the motor car bearing No. KL 01-CY-2624 and the house bearing No. T.C. No.100/440-1 of one Omanakuttan near Nehru Junction, Pallithura Desom, Attipra Village. The contraband articles were stored in contravention to the provisions of the NDPS Act. The accused 1 to 4 were arrested with the contraband articles and were taken into custody. The investigation has revealed that the 6th accused along with the accused 5 and 7 were also involved in the conspiracy and aided in the commission of the offences. Thus, the accused have committed the above offences.

Heard; Sri.Syam Kumar A.G., the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no material to establish the petitioner’s involvement in the crime. The petitioner is a 19 year old student and he does not have any criminal antecedents. The petitioner has been implicated solely on the basis of the confession made by the other accused. Therefore, Section 29 of the NDPS Act cannot be attributed to the petitioner. Hence, he may be enlarged on bail.

The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report in the case. It is contended that the petitioner had made 148 telephone calls and had financial transactions with the third accused, which shows his active involvement in the above crime. The 8th accused is still at large. The source of the drugs is still under investigation. The learned Public Prosecutor submitted that there are incriminating materials to prove the petitioner’s complicity in the crime. As huge commercial quantity of contraband is involved in the case, the rigour under Section 37 of the Act applies to the facts of the case. Hence, the petitioner is not entitled to be released on bail.

The prosecution allegation is that, the accused 1 to 4 were found in possession of 155.480 Kg of ganja and 70.71 grams of MDMA, which were transported for the purpose of sale, and were seized from a car and a house. The accused 1 to 4 were found in possession of the said contraband and were arrested. During their interrogation, it was revealed that the accused 5 to 7 were also involved in the case.

The petitioner had moved a similar application before the Court of Session, Thiruvananthapuram by filing Crl.M.P.No.14519/2023. By Annexure A1 order, the learned Sessions Judge, on finding the telephone call records and the bank transactions of the petitioner with the third accused, dismissed the application.

The petitioner has produced Annexures A4 to A10 to prove his academic brilliance.

Indisputably, the contraband that was allegedly seized from the accused is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts and circumstances of the case.

Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows:

“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.”

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.

While  interpreting  ‘reasonable  grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798] held as follows:

“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”.

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”

It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application.

In Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows:

“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) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail”.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations leveled against the petitioner, that the contraband that was allegedly seized from the accused is of a huge commercial quantity, prima facie there are materials on record to substantiate that the petitioner was in contact with third accused and had financial transactions with him, I do not find any reasonable ground to hold that the petitioner has not committed the offences alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. Therefore, I hold that the rigour under Section 37 of the Act applies to the facts and circumstances of the case. The application is meritless and is only to be rejected.

Resultantly, the application is dismissed.