Bail under the Narcotic Drugs and Psychotropic Substances Act is subject to the twin conditions of reasonable grounds for believing the accused is not guilty and not likely to commit any offence while on bail, and the public interest prevailing over individual liberty.

ORDER :

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Iritty Police Station Crime No.988 of 2022 registered for the commission of the offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’, for short). The petitioner was arrested on 07.12.2022.

2. The prosecution case, in brief, is that: on 07.12.2022 at about 11.15 PM, the accused 1 and 2 were found in possession of 298.10 grams of methamphetamine in a car on the Iritty – Koottupuzha bridge while transporting the contraband from the State of Karnataka to Kerala. Thus, the accused have committed the above offence.

3. Heard; Sri. Sam Isaac Pothiyil, the learned counsel for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor.

4. The learned counsel appearing for the petitioner strenuously argued that the petitioner is innocent of the accusation levelled against him. The petitioner has been falsely implicated in the crime. The petitioner has been in incarceration since 07.12.2022. The investigation in the case has been completed. The petitioner has no criminal antecedents. Therefore, the petitioner is entitled to bail in the light of the law laid down by this Court in Fasil V. State of Kerala [2023 (3) KHC 212]. Hence, the petitioner may be released on bail.

5. The learned Public Prosecutor strongly opposed the application. He contended that the decision in Fasil (supra) was rendered in the peculiar facts and circumstances of that case and cannot be treated as a binding precedent in all bail applications, especially considering the rigour under Section 37 of the Act and the declared law in a host of authoritative precedents of the Honourable Supreme Court. Considering the commercial quantity of the contraband involved in the case, the accused may not be let off on bail merely because he has been in judicial custody for the last fourteen months. Only if this Court enters a finding that the petitioner has not committed the alleged offence and is not likely to commit any offence in the future can the rigour under Section 37 be diluted. The contraband was transported from the State of Karnataka. The petitioner is likely to flee from justice if enlarged on bail. Hence, the application may be dismissed.

6. The prosecution case is that the petitioner and the 2nd accused were found in possession of 298.10 grams of methamphetamine, which is undoubtedly a commercial quantity. The petitioner was arrested on the spot on 07.12.2022.

7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving an offence under the Act. It is apposite to extract Section 37, which reads as follows:

“37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” (highlighted)

8. A reading of the above provision indicates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and involving commercial quantity shall not be released on bail unless the court is satisfied that there are ‘reasonable grounds’ to believe