Point of Law: Section 37(1) (b) and 37(1)(b) (ii) of NDPS Act, shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused.

ORDER :

This bail application has been filed under Section 439 of the Code of Criminal Procedure, seeking regular bail.

2. The petitioner is the 9th accused in Crime No.38 of 2021 on the files of Excise Range Office, Ernakulam District.

3. Heard the learned Counsel for the petitioner and the learned Public Prosecutor.

4. The prosecution case that could be read out from the case diary produced by the Public Prosecutor is that at 7 p.m on 19.08.2021, the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam detected 1.085 Kgs of MDMA without identifying the possessor of the same. Accordingly, crime was registered alleging commission of offences punishable under Section 22(c), 27 A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Thereafter, as part of the investigation, the CCTV details available at Marhaba Apartment, Vazhakala was examined and accordingly it was found that accused Nos.1 to 9 are the persons behind the transport of the said commercial quantity of the contraband and accordingly all the accused were arrested in periodical intervals.

5. The learned Counsel for the petitioner submitted that the petitioner has no criminal antecedents and he was implicated in the said crime on the basis of confession statement of other accused persons. He has also submitted that he has been in custody from 10.06.2022 onwards. Therefore, he is liable to be released.

6. The learned Public Prosecutor vehemently opposed the release of the petitioner on bail on the ground that he had involvement in another crime vide Crime No.36/2021 under NDPS Act and also the prosecution records including the CCTV footage would establish prima facie that he also had involvement in this crime. Therefore, this Court cannot release him on bail diluting the rider provided under Section 37(1)(b) of the NDPS Act.

7. Hence, the prosecution alleges possession of commercial quantity of contraband. In such cases the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under:

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 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.

8. On a perusal of the Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail.

9. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, Union of India v. Shiv Shankar Kesari and held that the expression ‘reasonable grounds’ 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.