MATHEW DOMINIC vs STATE OF KERALA

This petition is filed under Section 439 of the Code of Criminal Procedure.

The petitioner herein is the 3rd accused in Crime No.3432 of 2017 of the Perumbavoor Police Station, registered under Sections 20(b)(ii)(C),

25, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

On a tip off that large quantity of Ganja was being transported in two motor vehicles, the Sub Inspector of the Perumbavoor Police Station

intercepted a pick-up van bearing Reg.No. KL-10/3999 and a Maruti Ritz car bearing Reg. No.KL-35/D- 7852. Accused Nos. 1 & 2 were in

the pick up van and the petitioner herein was found driving the Maruti car. Search conducted in the vehicles resulted in the seizure of 64 kilograms

of Ganja from the pick-up van and 53 kilograms from the car, thus totaling 117 kilograms. The petitioner herein as well as accused Nos.1 & 2

were arrested on the spot itself and they are now in custody.

The learned counsel appearing for the petitioner submitted that the allegations are untrue. According to the learned counsel, on 18.10.2017, the

Sub Inspector of Police, Perumbavoor, had contacted the petitioner and he was directed to come to Kanjirappally. The petitioner along with two

of his friends, namely, Sri. Antony Puthenparambil and Sri. Joseph Mathew @ Baby went and met the officer. They were taken to a rubber estate

which was taken on lease by the petitioner for slaughter tapping and a detailed search was conducted. However, nothing could be recovered from

the building, which stood in the rubber estate. Thereafter, the petitioner was taken to the Perumbavoor Police Station and was illegally detained

there. His friends were permitted to leave. On 19.10.2017, the younger brother of the petitioner went and met the Sub Inspector and he was told

that the petitioner was taken to the Police Club. Later, he was implicated in the instant crime. It is further urged that a detailed complaint was

submitted by the brother of the petitioner before the Principal Secretary to the Government, Department of Home Affairs, narrating the innocence

of the petitioner and the mode in which he was roped in. The learned counsel also referred to Annexures-A1 and A2 paper reports to contend that

the seizure was effected from a different place and not as alleged by the prosecution.

The learned Public Prosecutor has opposed the prayer with much vehemence. It is submitted that what has been seized from the petitioner is 53

kgs of Ganja and the quantity seized is commercial in nature. All the formalities, which are required to be complied, were duly complied with. The

investigation is still in the early stages and a deep probe is being conducted to assess the source of the contraband and the network of operation of

the petitioner and the rest of the accused. It is further submitted that the parameters laid down in Section 37 of the NDPS Act, 1985 will have to

be satisfied as the quantity seized is commercial in nature. Highlighting the deleterious effects and deadly impact of the substance seized from the

possession of the petitioner, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by

traffickers such as the petitioner. The learned Public Prosecutor referred to the decisions of the Apex Court in Union of India (UOI) v. Shri Shiv

Shanker Kesari [(2007) 7 SCC 798] and Union of India v. Ram Samujh and Another [(1999) 9 SCC 429] to support his contentions.

I have considered the submissions advanced and have gone through the materials on record.

The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where

there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) of the Act is ?reasonable grounds?

which 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. 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. For that purpose, the court is not required to consider the matter as if it

is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused is

not likely to commit any offence and there should also exist some materials to come to such conclusion.

Having considered the submissions and after having gone through the materials on record, I am afraid that there are no substantial probable

causes for believing that the accused is not guilty of the offence charged. The newspaper clippings relied on by the petitioner will not advance the

case now set up by the petitioner. Prima facie, the case diary reveals that the mandatory formalities have been complied with. Other than

Annexure- A3 representation, which will not advance the case of the petitioner, the learned counsel has not been able to point out the existence of

any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that they are not guilty of the offence charged.

Furthermore, the investigation is in the preliminary stages.

In that view of the matter, I am not inclined to release the petitioner at this stage. This petition is accordingly dismissed.