Kerala High Court
Saran Mohan vs State Of Kerala on 15 October, 2024
Author: C.S.Dias
Bench: C.S.Dias
BAIL APPL. NO. 3433 OF 2024
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2024:KER:76245
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA, 1946
BAIL APPL. NO. 3433 OF 2024
CRIME NO.88/2023 OF Palakkad Excise Range Office, Palakkad
AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.1931 OF
2024 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD
PETITIONER/S:
SARAN MOHAN, AGED 25 YEARS, S/O. MOHAN, POOVAKKAD
THODI VEETIL, ORIENT NAGAR,DOOR NO. 17, VADAKEVILLA
VILLAGE, KOLLAM DISTRICT, PIN - 691010
BY ADVS.
SAM ISAAC POTHIYIL
S.SURAJA
MUHAMMED SUHAIR C.A
RAMU SUBHASH
KARAN MATHEW
ANANTHAKRISHNAN R.
RESPONDENT/S:
1 STATE OF KERALA,REPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
2 EXCISE RANGE OFFICE, PALAKKAD,
PALAKKAD DISTRICT, PIN - 678551
OTHER PRESENT:
SR PP SMT SEETHA S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
15.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BAIL APPL. NO. 3433 OF 2024
2
2024:KER:76245
C.S.DIAS,J
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Bail Application No.3433 of 2024
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Dated this the 15th day of October, 2024
ORDER
The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, 'Code') by the sole accused in Crime No.88/2023 of the Palakkad Excise Range Office, Palakkad, which is registered against him for allegedly committing the offence punishable under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'Act'). The petitioner was remanded to judicial custody on 20.07.2023.
2. The prosecution case, in brief, is that: on 20.07.2023, at around 15:45 hours, the accused was found in conscious possession of 110 grams of methamphetamine in the foot-over bridge of platform No.1 of the Palakkad Railway Station. The accused was arrested on the spot with the contraband article. Thus, the accused has committed the above offence.
3. Heard; Sri.Sam Isaac Pothiyil, the learned BAIL APPL. NO. 3433 OF 2024 3 2024:KER:76245 counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. There is no material to substantiate the petitioner's culpability in the crime. The 2nd respondent has violated the mandatory provisions under Sections 42, 50, 52 and 57 of the Act. There are reasonable grounds to hold that the petitioner is innocent of the accusations leveled against him. The petitioner is a person without any criminal antecedents. The petitioner has been in judicial custody for the last more than one year, the investigation in the case is complete and the complaint has been filed. There is no likelihood of the trial in the case commencing in the near future. Therefore, the application may be allowed.
5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter-alia, contending that 110 grams of methamphetamine, which is of a BAIL APPL. NO. 3433 OF 2024 4 2024:KER:76245 commercial quantity, was seized from the conscious possession of the petitioner. Since the contraband involved in the case is of a commercial quantity, the rigour under Section 37 of the Act applies to the facts of the case. There are no reasonable grounds to dilute the twin conditions under Section 37 of the Act. Merely because the petitioner has been in judicial custody for the last one year and three months, the same is not a ground to enlarge the petitioner on bail. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed.
6. The prosecution allegation is that the petitioner was found in conscious possession of 110 grams of methamphetamine. Indisputably the contraband involved in the case is of a commercial quantity. The petitioner contends that there has been infraction of Sections 42, 50, 52 and 57 of the Act. Even though the said allegation is raised, there are no grounds raised in the application regarding the violations committed by the 2nd respondent. BAIL APPL. NO. 3433 OF 2024 5 2024:KER:76245
7. Indisputably, the contraband involved in the case is of a commercial quantity.
8. 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".
9. 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 BAIL APPL. NO. 3433 OF 2024 6 2024:KER:76245 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.
10. 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".
11. In Union of India Vs. Ram Samujh and Another [1999 KHC 1542], the Honourable Supreme Court has laid down the law as follows:
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly BAIL APPL. NO. 3433 OF 2024 7 2024:KER:76245 impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secretary., Union Territory of Goa. [1990 (1) SCC 95 : 1990 SCC (Cri) 65] as under: "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine," 8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied.
The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondentaccused on bail. Instead of attempting to take a holistic view of the harmful socio- economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended."
12. In State of Kerala and others v. Rajesh and others [(2020) 12 SCC 122], the Honourable Supreme Court held as follows:
BAIL APPL. NO. 3433 OF 2024 8 2024:KER:76245 "18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under:
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) '24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.'
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should BAIL APPL. NO. 3433 OF 2024 9 2024:KER:76245 implement the law in the spirit with which Parliament, after due deliberation, has amended."
19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.
21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act".
13. As observed in Rajesh's case (supra), 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.
14. On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials BAIL APPL. NO. 3433 OF 2024 10 2024:KER:76245 placed on record, especially on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioner, that there are prima facie materials to substantiate the petitioner's involvement in the crime, that the contraband involved in the case is of a commercial quantity, I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence if he is enlarged on bail. The petitioner has not made out any valid ground to dilute the rigour under Section 37 of the Act. The application is meritless and it is only to be dismissed.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS,JUDGE Rkc/15.10.24 BAIL APPL. NO. 3433 OF 2024 11 2024:KER:76245 APPENDIX OF BAIL APPL. 3433/2024 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF ORDER DATED 08.04.2024 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS COURT PALAKKAD, PALAKKAD DISTRICT IN CRL, M.P. NO. 1931/2024 Annexure A2 THE TRUE COPY OF THE NOTICE