Kerala High Court
Shafad vs State Of Kerala on 4 January, 2018
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 4TH DAY OF JANUARY 2018 / 14TH POUSHA, 1939
Bail Appl..No. 8710 of 2017
CRIME NO. 754/2017 OF KASABA POLICE STATION , KOZHIKODE
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PETITIONER(S)/ACCUSED :
SHAFAD,
AGED 22 YEARS, S/O.KAMMUKOYA, RESIDING BAITHUL SAFA HOUSE,
THAYYIL PURAYIL, MERIKUNNU, VELLIMADUKUNNU,
KOZHIKODE DISTRICT.
BY ADVS.SRI.J.R.PREM NAVAZ
SRI.P.T.SHEEJISH
RESPONDENT(S)/STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SRI.S.SAJJU
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 04-01-2018, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Msd.
RAJA VIJAYARAGHAVAN V., J
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B.A.No.8710 OF 2017
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Dated this the 4th day of January, 2018
O R D E R
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1.This petition is filed under Section 439 of the Code of Criminal Procedure.
2.The petitioner herein is the sole accused in Crime No.754 of 2017 of Kasaba Police Station registered alleging offences punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3.The petitioner was intercepted by the Inspector of Police, Kasaba Police Station on 19.11.2017 at 4.10 p.m. in front of a building under construction at Kasaba, Kozhikkode. After complying with the statutory formalities, a search was conducted. 0.750 gms of LSD (stamp type) were allegedly seized from his possession. He was arrested on 20.11.2017 and he is now in judicial custody.
B.A.No.8710/2017 2
4.It is submitted by the learned counsel that the petitioner was not in conscious possession and as he is a young man aged 22 years and a person with no criminal antecedents, his continued incarceration is unwarranted.
5.The learned Public Prosecutor has vehemently opposed the submissions of the learned counsel. It is submitted that what has been seized from the petitioner is LSD, which would statutorily fall under the classification of "commercial quantity". Hence the parameters of Section 37 of the NDPS Act, 1985 will have to be satisfied. Unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the petitioner cannot be released. Highlighting the deleterious effects and deadly impact of such substances, 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 placed reliance on the B.A.No.8710/2017 3 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.
6.I have considered the submissions advanced and have gone through the materials on record.
7.The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. A reference to Section 37 of the Act will be apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:
"37. 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 a term of imprisonment of five years or more under this Act shall be released B.A.No.8710/2017 4 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.
8.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. It 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) is "reasonable grounds" which expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the B.A.No.8710/2017 5 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. However, this 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. 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.
B.A.No.8710/2017 6
9.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 petitioner 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.
10.In that view of the matter, I am not inclined to release the petitioner at this stage. This petition is accordingly dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE ps/4/1/2018xx