Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 357

IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
State of Kerala – Petitioner
Versus
Sreebabu – Respondent
Crl. M.C. No. 755 of 2023
Decided On : 13-06-2023

Advocates:
Advocate Appeared:
For the Respondents: B. Pramod, Biju Vigneswar, Ayyappadas V.

Point of Law: Right to liberty is a fundamental right under Article 21 of Constitution of India.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(c), 29, 36(4), 37, (1)(b)(ii) - Criminal Procedure Code, 1973 - Section 439 - Constitution of India, 1950 - Article 21 - Grant regular bail - Possession of contraband - Commercial quantity - Petition challenging order granting regular bail to respondent - Absence of possession of contraband on person of respondent does not absolve it of level of scrutiny required.
Findings of the Court:
Court considering the grant of bail in a case involving commercial quantity, could not have and should not have passed order under 439 Cr.P.C. without reference to Section 37 of NDPS Act and without entering a finding on required level of satisfaction in case Court was otherwise inclined to grant bail - Moreover where learned Sessions Judge has meticulously considered an application filed under Section 36A(4) and extended period of detention, order granting bail within extended period ought to have disclosed requisite level of satisfaction regarding compelling grounds that prompted learned Sessions Judge to grant bail - As learned Sessions Judge has overlooked crucial mandate under Section 37 of Act, Court cannot sustain impugned order.
Result: Petition allowed.

ORDER :

1. This petition is filed by the State challenging the order dated 13.10.2022 in Crl. M.P. No. 4059/2022 passed by the learned Sessions Judge, Alappuzha, granting regular bail to the respondent herein.

2. Short facts are as under:

The prosecution allegation is that on 11.02.2022 at about 2.55 PM, the 1st accused was found travelling in a private bus bearing Registration No. KL-38-2825 from Cherthala Bhagom to Arukkutty possessing 138.750 gms of MDMA. Based on source information, he was arrested, and the contraband articles were seized. The 1st accused is alleged to have disclosed that the respondent herein is his close friend and associate. A crime was registered as FIR No. 110/2022 at Poochakkal Police Station u/s.22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act, 1985” for brevity) against accused Nos. 1 and 2. The investigation which was conducted disclosed the involvement of the accused Nos. 3 and 4.

3. An application for regular bail was preferred by the 2nd accused. The learned Sessions Judge took note of the rival contentions and observed as follows:

“6. From a perusal of the report, it can be seen that huge quantity of MDMA is allegedly recovered in this case from the possession of the first accused. It emerges that, this case was detected on the basis of a tip-off received by the S.1. of Police, Poochackal Police station. The quantity of contraband seized in this case is commercial quantity. It is alleged that it was the petitioner, who aided the first accused to purchase the contraband seized in this case. There is specific allegation that the petitioner helped the 1st accused to purchase the contraband seized in this case and also received monetary benefits for the help which he had given to the 1st accused for purchasing the contraband. From the case diary, it emerges that already sufficient materials are collected by the police regarding the complicity of the petitioner in the commission of the offence and in the conspiracy hatched between the accused persons in this case. There is specific allegation that all the accused frequently contacted each other over phone and there were monetary transactions between them. Therefore, the petitioner cannot escape from the liability solely for the reason that no contraband is seized from him.

7. However, the contraband is actually seized from the exclusive possession of the first accused. When compared with first accused, the role played by the petitioner in the alleged commission of the offence stands on a lower pedestal. Undisputedly, no contraband is seized from the possession of the petitioner. The petitioner is seen arrested in this case on 12.02.2022 and since then he has been in custody. The investigation with respect to the involvement of the petitioner in the commission of the offence appears to have progressed substantially. I do admit that, already an order has been passed by this court, in view of S.36 A (4) of the NDPS Act, and a further time till 14.11.2022 is granted for completing the investigation in this case in respect of A2 and hence the period of detention authorised by the statute as per sub section (2) of S.167 of Cr.P.C. r/w 36 A (4) of the NDPS Act stands extended till 14.11.2022. However, the said order will no way restrict the power of this court to grant bail u/s.439 Cr.P.C. As already mentioned, from the available inputs it is discernible that, the investigation with respect to the complicity of the petitioner in the commission of the offence has crossed its major and crucial part. Further detention of the petitioner in judicial custody appears to be unwarranted for the progress of the remaining part of the investigation in this case. Considering the same, I am of the view that, the petitioner can be released on bail, on stringent conditions.”

4. The learned Sessions Judge has stated in the order that the prosecution has gathered compelling evidence regarding the involvement of the respondent. However, it was noted t