Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Ker) 183

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
Alif Khan – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor – Respondent
Bail Appl. No. 1183 OF 2024
Decided On : 11-03-2024

Advocates:
Advocate Appeared:
For the Petitioner: Aneesh K.R, Saurav B., Lia George
For the Respondent: Sri K Denny Devassy, Senior Public Prosecutor

The rider under Section 37 of the NDPS Act must be satisfied for granting bail to an accused involved in a case with commercial quantity of contraband, and the length of custody or the status of the trial are not valid considerations for diluting the rider under Section 37.

Headnote:
NDPS Act - Bail Application - Section 439 - Section 37(1)(b)(ii) of the NDPS Act - Section 37(1)(b) of the NDPS Act - Section 37 - Section 20(b)(ii)(A) - Section 22(c)
Fact of the Case:
The accused filed the fourth bail application under Section 439 of the Code of Criminal Procedure. The earlier bail applications were dismissed due to the involvement of commercial quantity of contraband under the NDPS Act.
Finding of the Court:
The court found that the rider under Section 37 of the NDPS Act could not be diluted in a case involving commercial quantity, and the length of custody or the status of the trial were not persuasive for granting bail.
Issues: The main issue was whether the accused, involved in a case with commercial quantity of contraband, could be granted bail under Section 37 of the NDPS Act.
Ratio Decidendi: The court held that the rider under Section 37 of the NDPS Act must be satisfied for granting bail to an accused involved in a case with commercial quantity of contraband. The court also emphasized that the length of custody or the status of the trial were not valid considerations for diluting the rider under Section 37.
Final Decision: The bail application was dismissed, and the court directed the Sessions Courts and Special Courts not to follow certain previous decisions and to adhere to the principles established in the present judgment.

ORDER :

This is the fourth bail application filed by the sole accused in crime No.7/2023 of Devikulam Excise Range, Idukki under Section 439 of the Code of Criminal Procedure. Earlier 3 bail applications, viz. B.A.Nos.1043/2023, 6995/2023 and B.A.No.9904/2024 were dismissed as per Annexures A1, A2 and A3 orders. While dismissing the third bail application, viz. B.A.No.9904/2024, this Court extracted the reason for dismissal of the earlier applications as under:

“This is the third bail application filed by the sole accused in crime No.7/2023 of Devikulam Excise Range, Idukki under Section 439 of the Code of Criminal Procedure.

2. The petitioner had filed two bail applications earlier seeking regular bail, vide B.A. Nos.1043/2023 and 6995/2023, those petitions were dismissed for the reasons stated in paragraphs 2 to 14 of Annexure A1, order in B.A.No.1043/2023. The same are extracted hereunder :

“2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary along with detailed report submitted by the Investigating Officer.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 20(b)(ii)(A) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act'). The allegation of the prosecution is that, at about 3.20 pm on 25.01.2023, the accused was found in possession of 7 gram of dry Ganja and 0.126 gram of LSD (7 stamps of LSD) near Velmudy Kara, Munnar, while the petitioner was transporting the same on a motor bike bearing registration No.KL-82-1280, against the prohibitions contained in the NDPS Act. Accordingly the accused was nabbed and the contraband was seized. Pursuant to the recovery and arrest, crime alleging commission of the above offences was registered and is on investigation.

4. The learned counsel for the petitioner would submit that, the petitioner is innocent and the petitioner is a 25 year old person. Therefore, taking note of the custody of the petitioner from 25.01.2023 and the progress of investigation, he may be enlarged on bail.

5. While opposing grant of bail to the petitioner, the learned Public Prosecutor would submit that, red handed recovery of commercial quantity of contraband led to registration of this crime and the investigation is on the extreme primitive stage. Further, it is submitted that, in order to grant regular bail to the petitioner, who alleged to have possessed commercial quantity of contraband, twin conditions provided under Section 37 of the NDPS Act must be satisfied.

6. On perusal of the prosecution records, commercial quantity of contraband to the tune of 7 gram of dry Ganja and 0.126 gram of LSD (7 stamps of LSD) recovered red handedly from the petitioner and in such a case, this Court must satisfy the twin conditions stipulated under Section 37 of the NDPS Act, while granting bail to an accused, who alleged to have possessed commercial quantity of contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in this case.

7. 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.