IMPORTANT POINT
Recording of satisfaction that accused is not guilty IS Sine qua non for granting bail u/s 37, NDPS Act.

JUDGMENT

Ajay Rastogi, J.

1. Leave granted.

2. The appellant­prosecution has challenged the discretion exercised by the learned Single Judge of the High Court of Kerala in granting post­arrest bail to the accused respondents without noticing the mandate of Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter being referred to as “NDPS Act”) under the order impugned dated 10th May, 2019 followed with 12th June, 2019 rejecting the application filed by the appellant under Section 482 of the Code of Criminal Procedure(hereinafter being referred to as “CrPC”) for recalling the order of post­arrest bail dated 10th May, 2019.

3. It may be noticed that accused respondent Shajimon is (A­5) in Crime No. 14/2018 and (A­1) in Crime No. 19/2018 and another accused respondent Rajesh is (A­3) in Crime No. 19/2018.

Facts of Crime No. 14/2018

4. The prosecution case is that on 25th May, 2018 at 5.30 p.m. in the parking area of the Hotel Aquarock situated at Mannanthala, accused A­1 to A­3 were found to be in joint possession of 10.202 kgs of hashish oil and currency notes worth Rs. 13,50,000/­. The Circle Inspector of Excise, Thiruvananthapuram arrested all of three accused A­1 to A­3 and seized the hashish oil, money and the vehicles which were used by them for transporting oil. The allegation against the accused respondent (A­5) was that he entrusted hashish oil to A­1 through A­2 for sale in the International market and Crime No. 14/2018 was registered against him for the offences punishable under Sections 20(b)(ii)(c) and Section 29 of the NDPS Act and after investigation, charge­sheet was filed on 10th May, 2019.

5. On an application filed for post­arrest bail by accused respondent(A­5), learned Additional Sessions Judge while noticing the mandate of Section 37(1)(b)(i) and (ii) of the NDPS Act observed that there was a prima facie material to presume that the accused committed the offence punishable under Section 20(b)(ii)(c) and Section 29 of the NDPS Act and rejected the application for post­ arrest bail vide order dated 21st February, 2019 which came to be challenged at the instance of the accused respondent filing bail application before the High Court.

6. Learned Judge of the High Court without even noticing Section 37 of the NDPS Act and taking note of the fact that other accused persons in Crime No. 14/2018(A­1 to A­4) since have been released on bail, granted him post­arrest bail under the order impugned dated 10th May, 2019 which is a subject matter of appeal before us.

Facts of Crime No. 19/2018

7. The accused respondents in Crime No. 19/2018 are registered at excise circle office, Thiruvananthapuram alleging commission of the offence punishable under Section 20(b)(ii)(c) of the NDPS Act. It may be noticed that A­5 in Crime No. 14/2018 is A­1(Shajimon) in Crime No. 19/2018 and other accused, i.e. Rajesh is A­3. The case of prosecution is that on 25th October, 2018 at about 5.45 PM at Aristo Junction, Thiruvananthapuram, accused respondent (Shajimon­A1) along with two other persons including A­3(Rajesh) were found to be in possession of 1.800 kg of hashish oil. They were arrested on 25th October, 2018 for offence punishable under Section 20(b)(ii)(c) of the NDPS Act. After investigation, charge­ sheet was filed on 17th April, 2019. Both the accused respondents(A­1 and A­3) filed their respective post­arrest bail application before the Sessions Judge, Thiruvananthapuram which came to be dismissed after assigning cogent reasons under Order dated 21st February, 2019 and both of them preferred their bail application before the High Court. The High Court vide its order dated 10th May, 2019 granted bail to A­1 and A­3 in Crime No. 19/2018 and observed that both the accused have completed 195 days in judicial custody and their further detention is not necessary as nothing remains to be investigated against them. Although Section 37 of NDPS Act has been referred to by the learned Single Judge in the impu