Fijo vs State Of Kerala

Shircy V., J

The petitioner, who is arraigned as the 3rd accused in Crime No. 705 of 2021 registered for the offences punishable under Sections 20(b)(ii) C, 25,

27A and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') read with Section 120B of the Indian Penal Code, has

moved this application seeking bail under Section 439 of the Code of Criminal Procedure.

The petitioner has been in custody since 13.08.2021. The prosecution case is that on 12.08.2021 at about 10.45 a.m., accused Nos. 1 and 2 were

found transporting 20.845 kgs. of ganja in a Mahindra Bolero pickup bearing Registration No. KL-39-G-4860 through the public road near Muringoor

Chackola Marys Tile Works. They were apprehended by the 1st respondent and on investigation it was revealed that accused Nos. 3 and 4 had

financed them to procure and transport the ganja and thereby accused Nos. 1 and 2 were apprehended by the police and accused Nos. 3 and 4 were

arrested on the next day.

The learned counsel for the petitioner has raised a plea of false implication and contended that he is totally innocent of the allegations levelled

against him. In fact nothing has been seized from his possession. Of-course there is an allegation that he had financed to purchase and transport ganja

along with the 4th accused, as confessed by accused Nos. 1 and 2, but, in fact, this petitioner is having some business transaction with accused No.2.

The amount of Rs.5,000/- alleged to have been transferred by this petitioner to the account of the 2nd accused was not for the alleged purchase of

ganja as stated by the prosecution, but it was in connection with their joint diary farm business. So, he seeks for his release on bail.

On the other hand, the learned Public Prosecutor vehemently opposed the application and contended that the allegations raised against this petitioner

are absolutely correct and reliable and actually the detection of the contraband was on the basis of a credible secret information received by the Sub

Inspector of Koratty Police Station and on the basis of the information, after complying with the formalities he had intercepted the vehicle and seized

the ganja from the possession of accused Nos. 1 and 2. On recording the statement, the involvement of this petitioner as well accused No.4 were

revealed and thus they were apprehended on the next day.

It is true that no contraband was seized from the possession of this petitioner. But on the basis of the statement given by accused Nos. 1 and 2,

this petitioner was also apprehended. On investigation it was revealed that this petitioner along with the other accused stayed together in a lodge by

name 'Sreekrishna Bhavan' in Uduppi so as to procure the contraband and the tower location and the call details of their mobile phones collected by

the investigating agency would reveal that this petitioner along with the other accused have collected the contraband, for illegal sale. When he

advanced money to collect it, his role in the illegal transaction is prima facie evident.

In the first bail application itself this court has found that this petitioner was not having any business transaction other than, the dealings with the

narcotic items, so as to infer that the amount was transferred by him to the account of the 2nd accused as asserted by him. The documents produced

by him so as to appear that they were having some business in respect of a diary farm was found as forged documents created for the purpose of this

case. In fact, prima facie it appears that the business transaction was only for procuring ganja.

Moreover, the investigating agency has to gather evidence as it was revealed from the materials so far collected that this petitioner had also joined

accused Nos. 1 and 2 in Andhra Pradesh by taking up a journey by flight, while accused Nos. 1 and 2 proceeded to the spot with the vehicle involved

in this case to procure the contraband. So, the investigating agency has to collect his travel details also for the purpose of the investigation of the case.

Here commercial quantity of contraband is involved in this case. Granting of bail in a case where commercial quantity of narcotic drugs is involved

is circumscribed by the provisions of Section 37 of the NDPS Act. Interpreting the word 'reasonable grounds' in Section 37 of the NDPS Act the

Apex Court in Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798] has held as follows:

“7. The expression used in Section 37(1)(b)(ii) is “reasonable groundsâ€. 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.

The word “reasonable†has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonableâ€​.

“9. … It is often said that 'an attempt to give a specific meaning to the word “reasonable†is trying to count what is not number and measure what is not

space.' The author of Words and Phrases has quoted from Nice & Schreiber, In re to give a plausible meaning for the said word. He says 'the expression

“reasonable†is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be

determined.' It is not meant to be expedient or convenient but certainly something more than that.â€​

The word “reasonable†signifies “in accordance with reasonâ€. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not

depends on the circumstances in a given situation. (See Municipal Corpn of Greater Mumbai v. Kamla Mills Ltd)

The court while considering the application for bail with reference to Section 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.â€​

[See the decision reported in State of Kerala v. Rajesh (2020(1) KHC 557)].

Apart from that as observed in the earlier order, this petitioner is involved in 20 other criminal cases registered before various police stations. So he

is a history-sheeter. Now the investigation of the case is not over. Taking into account of the aforementioned reasons and the nature and seriousness

of offence, I find that this petitioner is not entitled to be released on bail, though no contraband has been seized from his possession as projected by the

learned counsel for the petitioner.

Dismissed.