ORDER :

This is an application for regular bail filed by the sole accused in Crime No.27/2023, of Neyyattinkara Police Station, Thiruvananthapuram.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3. I have perused the relevant documents form part of the case diary, placed by the learned Public Prosecutor.

4. The prosecution case in brief is that, at about 7.45 a.m on 15.04.2023, the accused was found in possession of 46.37 grams of MDMA and accordingly, he was nabbed red handedly. Thereafter, crime alleging commission of offences punishable under Section 22 (c) and 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, registered and is on investigation.

5. According to the learned counsel for the petitioner, the petitioner is innocent and the allegations are false. The learned counsel for the petitioner pressed for grant of regular bail to the petitioner.

6. Whereas, the learned Public Prosecutor submitted that in this case, 46.37 grams of MDMA was seized red handedly and the accused cannot be released on bail, since the grant of bail is interdicted by Section 37 of NDPS Act. It is also submitted that the investigation is in the extreme primitive stage and the petitioner cannot be released on regular bail.

7. In this matter, red handed recovery of 46.37 grams of MDMA is established, prima facie and the investigation is in the extreme primitive stage. Further, this Court cannot grant regular bail to the petitioner without satisfying the conditions under Section 37 of NDPS Act.

8. No doubt, when the prosecution alleges possession of commercial quantity of contraband, 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.

9. On a perusal of 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.

10. 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.

11. It was further held that the Court while considering the application for bail with reference to S.37 of the 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 Court is called upon t