Kerala High Court
Ameen @ Ajmal vs State Of Kerala on 3 March, 2021
Equivalent citations: AIRONLINE 2021 KER 173
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
Bail Appl..No.5539 OF 2020
CRIME NO.118/2020 OF Erattupettah Police Station , Kottayam
PETITIONER/S:
AMEEN @ AJMAL
AGED 24 YEARS
KOLLAMPARAMBIL HOUSE, THEKKEKARA KARA
686121
BY ADV. SRI.PRANOY K.KOTTARAM
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
682031
2 THE SUB INSPECTOR OF POLICE
AGED 40 YEARS
ERATTUPETTA POLICE STATION
ERATTUPETTA, KOTTAYAM DISTRICT
686121
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.SANTHOSH PETER SR PP
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.02.2021,
ALONG WITH Bail Appl..6219/2020, THE COURT ON 03.03.2021 PASSED
THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
Bail Appl..No.6219 OF 2020
CRIME NO.118/2020 OF Erattupettah Police Station , Kottayam
PETITIONER/S:
NIYAS K I
AGED 24 YEARS
SON OF ISMAIL,
KUNTHIPARAMBIL HOUSE,
ERATTUPETTAH P.O., KADUVAMUZHI
KOTTAYAM DISTRICT
686121
BY ADV. SRI.C.RAJENDRAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
682031
R1 BY SRI.SANTHOSH PETER SR PP
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.02.2021,
ALONG WITH Bail Appl..5539/2020, THE COURT ON 03.03.2021 PASSED THE
FOLLOWING:
BA Nos.5539 and 6219 of 2020
-3-
O R D E R
BA Nos.5539 and 6219 of 2020
-------------------------------------
Dated this the 3rd day of March, 2021 Applications for regular bail under Section 439 Cr.P.C.
2. The applicant in BA No.5539/2020 is the first accused while the applicant in BA No.6219/2020 is the fourth accused who seek bail in Crime No.118/2020 of Erattupetta Police Station for having allegedly committed an offence punishable under Section 22 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short) and under Sections 18(C) and 27(b)(ii) of Drugs and Cosmetics Act.
3. The prosecution case in brief is that on 30/01/2020 at about 11:10 PM consequent to getting a reliable information about the four accused persons keeping in possession drugs coming in schedule H1 for the purpose of sale without any licence or prescription by the Doctor, the Officers of Erattupetta Police Station went in search of them and intercepted a Maruti Zen car bearing registration No.KL 07 Y 6866 and found four persons in the car. On seeing the Police party, accused 3 and 4 fled way. Accused 1 and 2 were apprehended. Inspection of the car BA Nos.5539 and 6219 of 2020 -4- revealed 21 bottles containing 100 ML each of Triprolidine Hydrochloride and Codeine Phosphate (CODECTUSS) and 12 numbers Nitrazepam Tablets IP (Nitrosun 10) concealed inside the panel of the right side rear door of the car, and thus they committed an offence as alleged.
4. The applicants contend that they are innocent. A4 states that he is not aware of the seizure of narcotic drugs as stated by the prosecution. The prosecution story that the A3 and A4 fled away from the scene on seeing the Police party is an absolute falsity. It is contended that the A4 had undergone a major surgery at the Medical College Hospital, Kottayam, following a road traffic accident in which he had sustained a severe head injury. Because of the subdural haematoma and the fracture of the left parietal bone in consequence to the accident, he has been permanently disabled to the extent of 40 percent for having locomotor disability on the left side due to post-traumatic hemiparesis. A1 states that the contraband allegedly seized from the accused is cough syrup, and that the penal provisions of NDPS Act are not attracted. The applicants also contend that the quantity of contraband is not commercial, so as to attract the BA Nos.5539 and 6219 of 2020 -5- rigour under Section 37 of the NDPS Act. The applicants seek bail. Their applications before the jurisdictional Court were repeatedly dismissed. Hence they seek indulgence of this court.
5. Heard the learned counsels Sri Pranoy K. Kottaram for A1, and Sri B.K. Gopalakrishnan for A4. The learned Sr. Public Prosecutor Sri Santhosh Peter was also heard. Records perused.
6. Sri Gopalakrishnan strenuously argues that A4 being a disabled person due to hemiparesis, has weakness in all his limbs. And that loss of balance, difficulty in walking, impaired ability to grab objects, decrease in movement precision, muscle fatigue and lack of coordination are some of the symptoms of a person suffering from hemiparesis. Such being the condition of the A4, it is hard to believe that he had taken to his heels on seeing the Police party and had manged to escape from them.
7. Sri.Gopalakrishnan relies on a catena of decisions in support of his argument that the bail can be granted to an accused in a case coming under the NDPS Act, despite the embargo under Section 37 for which there is no blanket ban on the powers of the High Court under Section 439 of the Cr.P.C. The learned counsel also draws attention of this Court to the fact that BA Nos.5539 and 6219 of 2020 -6- the A4 was arraigned as an accused in this case solely based on the alleged confession statement given by accused 1 and 2 who were apprehended. The learned counsel also reminds this Court the importance of liberty of individuals being sacrosanct. Added to this, the learned counsel points out that A4 is a person without any antecedents. All these circumstances would weigh in favour of granting bail to A4, submits the learned counsel. Sri Pranoy also would arue under similar line and state that the quantity is not commercial, so as to attract the rigour of S.37 of the NDPS Act.
8. Per contra, the learned Public Prosecutor would counter the arguments advanced by the learned counsel for the applicants by stating that the applicants are implicated in a case involving commercial quantity of narcotic drugs. Hence, Section 37 (1) (b) (ii) of the NDPS Act would be attracted in this case. The learned Prosecutor also would point out that the disablities pointed out by A4 did not prevent him from fleeing. The accident in which he was allegedly involved took place on 08/12/2017. A1 was caught red handed with the contraband. The final report has already been filed on 30.06.2020. Considering the gravity of the BA Nos.5539 and 6219 of 2020 -7- offence, the applicants may not be released on bail, argues the learned Public Prosecutor.
9. After having given my anxious consideration to the arguments advanced by either side and also the records and precedents on the point, I find that the applicants are not entitled to bail. The reasons for that I shall elaborate.
10. The relevant portion of Section 37 NDPS Act reads thus:
" (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) Every offence punishable under this Act shall he 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."
The Court while considering the application for bail with reference to Section 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 BA Nos.5539 and 6219 of 2020 -8- Court is called upon to see, if there are reasonable grounds (emphasis supplied) for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has to consider the matter as if it is pronouncing judgment of acquittal on recording a finding of not guilty. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist a material to come to such conclusion (See Union of India v. Sri Shiv Shankankar Kesri [2007 (7) SCC 798:
2007 KHC 5675 (SC)] )
11. The words "reasonable grounds" used in the statute mean 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. (See Shaji N v. State of Kerala [2019(1) KHC 667])
12. Adherence to Section 37 of the NDPS Act is undoubtedly mandatory. But it is also true that Section 37 is not BA Nos.5539 and 6219 of 2020 -9- a blanket bar on the powers of the High Court in granting bail. It has to be seen whether there are reasonable grounds in this case to believe that the accused is not guilty. The two grounds which are being embarked upon by the learned counsel appearing for the applicants are that confession of the co-accused under Section 67 of the NDPS Act, which alone is not sufficient . The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (See In re Periyaswami Moopan [1931 ILR. 54 Mad. 75 at 77])
13. In Union of India v. Ram Samujh and Ors., [1999 BA Nos.5539 and 6219 of 2020 -10- KHC 1542], 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."
Again, the Hon'ble Apex 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 Secy., Union Territory of Goa, [1990 KHC 699] 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 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 S.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 BA Nos.5539 and 6219 of 2020 -11- a holistic view of the harmful socio - economic 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."
14. In a latest decision of the Hon'ble Apex Court in State of Kerala v. Rajesh etc. [2020(1) KHC 577], it is held thus :-
"The scheme of S.37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S.439 of the CrPC, but is also subject to the limitation placed by S.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."
The argument of the learned counsel appearing for the applicants regarding the reliance on the confession statement of the co- accused cannot be comprehended now but the trial Court will have to necessarily consider this aspect pointed out by the learned counsel during trial. The confession statement alone may not be sufficient to enter an order of conviction unless there are other substantial piece of evidence pointing out towards the guilt of the accused. The prosecution in this case has to prove its case by marshalling evidence against the accused. Hence, it is too early to conclude that the prosecution case rests solely on the basis of the confession statement.
BA Nos.5539 and 6219 of 2020 -12-
15. The other argument advanced by the learned counsel is that the prosecution case is belied because of the physical incapacity of the A4 to run away from the scene of occurrence. Hemiparesis may be a condition where the person affected is incapacitated from walking or running but that is not a permanent feature. Treatment like physiotherapy could cure a person of such disability. The accident had occurred in the year 2017 and the involvement of A4 in the present crime is in the year 2020. There is possibility that he is cured of the disability to a great extent so as to enable him to flee from the Police officers.
16. Regarding the contraband not being commercial quantity, the answer is provided by the Apex Court in Hira Singh and Another v. Union of India and Another [2020 (2) KHC 551], wherein it is observed thus:
"10. In view of the above and for the reasons stated above, Reference is answered as under:
(I) The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be BA Nos.5539 and 6219 of 2020 -13- excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;
(III) S.21 of the NDPS Act is not stand - alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18/11/2009 and Notification S.O 1055(E) dated 19/10/2001;
(IV) Challenge to Notification dated 18/11/2009 adding "Note 4" to the Notification dated 19/10/2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writpetitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."
17. Considering the gravity of the offence and for the reasons stated above based on precedents, I am not inclined to grant bail to the applicants. The applications are therefore, dismissed.
I am sure that the jurisdictional Court would earnestly attempt to expedite disposal of this case.
Sd/-
ASHOK MENON JUDGE jg