Kerala High Court
Akshay K vs State Of Kerala on 9 July, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946
BAIL APPL. NO. 11366 OF 2023
CRIME NO.07/2023 OF NARCOTICS CONTROL BUREAU, KOCHI, Ernakulam
PETITIONER:
AKSHAY K,
AGED 26 YEARS
S/O.UDAYA KUMAR K.,R/O.- KANAKIZHI, SAJITHA
SOUDHAM,KOKKIVALAVU, FEROKE COLLLEGE
P.O.,RAMANATTUKARA, KOZHIKODE DISTRICT, PIN - 673632
BY ADVS.
SADIQALI.M
DHANYA S NAIR
DELLA ABRAHAM
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
NEEMA T.V. - SR PP
R.VINU RAJ - SPL PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.11366/2023
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C.S.DIAS, J.
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B.A.No.11366 of 2023
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Dated this the 9th day of July, 2024
ORDER
The application is filed under Section 439 of Code of Criminal Procedure by the sole accused in O.R.No.7/2023 of the Narcotics Control Bureau, Kochi, which is registered against him for allegedly committing the offences punishable under Sections 22(C), 8(C), 23(C), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 23.11.2023.
2. The concise case of the prosecution is that:
the Junior Intelligence Officer of the Narcotic Control Bureau, Kochi (NCB), received information regarding a suspicious parcel bearing No.RR903480067PL received at the Foreign Post Office, which is suspected to be B.A.No.11366/2023 ..3..
containing drugs. Accordingly, the Junior Intelligence Officer constituted a team and proceeded to the office.
On checking the parcel they found 52 pink colour rectangular tablets (30.27 grams) believed to be MDMA, 0.91 grams of off-white crystalline powder believed to be Amphetamine and 59.97 candies believed to be Amphetamine or MDMA. The parcel was booked in the name of one Abdul Zameer K. The Detecting Officer seized the material object and documents and produced the same before the Judicial First Class Magistrate Court - II, Ernakulam and completed the sampling procedure, and send the samples for chemical analysis. Based on reliable information, the accused was summoned by the Investigating Officer on 22.11.2023 and his statement was recorded. During his interrogation he admitted that the parcel contained contraband articles and the B.A.No.11366/2023 ..4..
parcel was booked by him. Abdul Zameer K. and the accused were friends and were running independent businesses in the same building. The investigation has unveiled that the accused has deliberately used the address of Abdul Zameer K. and sent the parcel in his name. As the petitioner had collected the Identity Card and Pan Card of Abdul Zameer K., the investigation has confirmed that it was the accused who had ordered the contraband articles. Thus, the accused has committed the above offences.
3. Heard; Sri.Sadiqali M., learned counsel for the petitioner and Sri.R.Vinu Raj, learned Special Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner's involvement in the B.A.No.11366/2023 ..5..
crime. The Investigating Officer has deliberately implicated the petitioner in the case without any cogent material. A reading of the complaint filed before the jurisdictional Court would show that the accused has been implicated in the crime solely on the basis of his confession, which is an inadmissible evidence in view of the law laid down by the Hon'ble Supreme Court in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]. The petitioner has been languishing in jail for the last seven months, the investigation in the case is complete and the final report/complaint has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed.
5. The learned Special Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that B.A.No.11366/2023 ..6..
there are incriminating materials to substantiate the petitioner's involvement in the crime. The Investigating Officer has stated that the petitioner was running a juice shop adjacent to the shop of Abdul Zameer K. The petitioner undertook to arrange a vehicle loan for Abdul Zameer K. and accordingly, received his Aadhar Card, Pan Card and Driving License. It was by making use of the said documents that the petitioner ordered the above contraband articles. He has paid the consideration for the contraband articles through crypto currency from his crypto wallet. He has, thereafter, sent a whatsapp message to Abdul Zameer K, enquiring about the parcel. The petitioner has deleted all the chats from his whatsapp, telegram and instagram applications. The petitioner's mobile phone has been sent for forensic science examination. The petitioner is dealing B.A.No.11366/2023 ..7..
in contraband articles for quite some time and is leading a very luxurious lifestyle. The contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, applies to the facts of this case. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the bail application is dismissed.
6. The prosecution allegation is that the petitioner had used the identity cards and pan card of his adjacent shop owner named Abdul Zameer K. and booked a parcel containing contraband articles. On getting secret information, the Detecting Officer found that the parcel contained commercial quantity of contraband articles. Investigation has revealed that it was the petitioner who has ordered the parcel and he has paid its consideration through crypto currency. It B.A.No.11366/2023 ..8..
was also revealed that the petitioner had enquired with Abdul Zameer K., regarding the parcel. He also has deleted all his chats in the various applications. The fact remains that the contraband involved in the case is of a commercial quantity.
7. 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 B.A.No.11366/2023 ..9..
limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail"
8. 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 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.
9. While interpreting 'reasonable grounds' prescribed under Section 37 of the Act, the Honourable Supreme Court in Union of India v. Shiv B.A.No.11366/2023 ..10..
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".
10. This Court reminisces the decision in State of Kerala and others v. Rajesh and others [(2020) 12 SCC 122], an appeal arising from a bail order passed by this Court granting bail to a person accused of an offence under the Act, wherein the Honourable Supreme Court went to hold as follows:
"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 B.A.No.11366/2023 ..11..
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 B.A.No.11366/2023 ..12..
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 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 B.A.No.11366/2023 ..13..
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".
11. 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.
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with applications for bail in the following lines:
"9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic B.A.No.11366/2023 ..14..
principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail".
13. Indisputably, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case.
On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioner, the potential severity of the punishment that can be imposed on him, the B.A.No.11366/2023 ..15..
commercial quantity of the contraband involved in the case and the prima facie material that shows the petitioner's involvement in the crime, 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 rejected.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS, JUDGE ACR