Sarath Raj vs State Of Kerala

A. Badharudeen, J

This is a regular bail application, filed by accused Nos.2 and 3 in Crime No.117/2023 of Kollengode Police Station, Palakkad.

Heard the learned counsel for the petitioners as well as the learned Public Prosecutor, in detail.

I have perused the case diary, as such.

The prosecution case is that, at 17.30 hrs. on 13.2.2023, when accused Nos.1 to 5 were engaged in transport of 88.880 grams of MDMA in a Maruthi Ignis Car, bearing Registration No.KL-02-BC-8777, they were intercepted and accordingly, the above said quantity of contraband seized. Since it was found by the detecting officer that the accused were jointly engaged in transporting of contraband, they were questioned and nabbed along with the contraband. Accordingly, crime was registered, alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’ hereinafter).

The learned counsel for the petitioners submitted that two earlier applications, viz., B.A.No.3499/2023 and B.A.No,5594/2023, filed at the instance of the 3rd accused, were dismissed. B.A.No.3499/2023 was dismissed for non-prosecution and B.A.No.5594/2023 was dismissed as not pressed. It is also submitted that the 2nd accused moves for regular bail for the first time. The learned counsel further submitted that the petitioners have no criminal antecedents and they are innocent. According to him, the entire case is a fabricated story and therefore, the petitioners, who have been in custody from 13.2.2023, are liable to be released on bail, since their custody for the purpose of investigation in this matter has been completed.

Strongly opposing bail to the petitioners in this crime, the learned Public Prosecutor submitted that, this is red-handed recovery of 88.880 grams of MDMA, while the accused were jointly transporting the same, for the purpose of sale and in this matter, investigation already completed and charge filed before the Special Court. Therefore, release of the petitioners is not permitted, in view of the bar under 37 of the NDPS Act. As such, the trial should be completed, keeping their custody.

In this matter, a report from the learned Special Judge, Palakkad, dealing with S.C.No.758/2023, arose out of this crime, was obtained. As per report, dated, 9.1.2024, the learned Special Judge reported that the trial in this matter could be completed within a period of 6 months.

On perusal of the case diary, it could be gathered that the accused were nabbed at Valluvakund in Kollengode Nenmara public road. Accused Nos.1 to 3 are natives of Kollam District and 4th accused is a native of Idukki and 5th accused is a native of Ernakulam District. They were jointly found in possession of commercial quantity of contraband and the prosecution records would establish commission of offence punishable under Section 22(c) of the NDPS Act, prima facie.

Insofar as grant of bail to an accused, who involved in commercial quantity of contraband is concerned, Section 37 of the NDPS Act, is an absolute rider and for granting bail, the court should have to satisfy the twin conditions therein. 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 NDPS 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],

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.

On perusal of the case diary along with the prosecution records, this Court could not dilute the rider under Section 37 of the NDPS Act, in any manner to grant bail to the petitioners.

Therefore, this bail application must fail and is accordingly dismissed, with direction to the learned Special Judge, Palakkad, to expedite the trial, as reported.