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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. DIAS, J.
FRANK PHILIP S/O K.V. PHILIP – Petitioner
Versus
STATE OF KERALA – Respondent
BAIL APPL. No. 5038 of 2024
Decided On : 07-08-2024
BAIL - Narcotic Drugs and Psychotropic Substances Act - Sections 22(c), 29 of NDPS Act, 1985; Section 439 of CrPC - The court discussed the provisions of Section 37 of the NDPS Act, which restricts bail for offenses involving commercial quantities of narcotics. It emphasized that bail can only be granted if the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit further offenses. The court interpreted 'reasonable grounds' as requiring substantial evidence beyond mere prima facie grounds, influencing its decision to deny bail due to the serious nature of the charges and the accused's criminal history.
Fact of the Case:
The petitioner, accused in Crime No.36/2023, was arrested for allegedly possessing and transporting 58.975 gms of MDMA. He claimed innocence, asserting the contraband was in the possession of the second accused and sought bail after being in custody for over a year.
Finding of the Court:
The court found that the contraband was of a commercial quantity and that the petitioner had a history of criminal offenses, including previous charges under the NDPS Act. The court concluded that the petitioner did not meet the criteria for bail under Section 37 of the NDPS Act.
Issues: Whether the petitioner could be granted bail under the NDPS Act despite the serious nature of the charges and his criminal antecedents.
Ratio Decidendi: The court reiterated that under Section 37 of the NDPS Act, bail can only be granted if the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit further offenses. The interpretation of 'reasonable grounds' requires substantial evidence, which the petitioner failed to provide.
Final Decision: The application for bail was dismissed due to the serious nature of the charges, the commercial quantity of the contraband, and the petitioner's criminal history.
ORDER :
1. The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.36/2023 of the Trivandrum Excise Range Office, which is registered against the two accused persons, for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested and remanded to judicial custody on 21.07.2023.
2. The crux of the prosecution case is that; on 21.07.2023, at around 13:00 hrs., the accused 1 and 2 were found in conscious possession and transporting 58.975 gms of MDMA in a scooter bearing No.KL-01-CN- 5628. They were arrested on the spot with the contraband article. Thus, the accused have committed the above offences.
3. Heard; Sri. J.R. Prem Navaz, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to show that the contraband was seized from the petitioner's conscious possession. The contraband was actually in the possession of the second accused. In any given case, the petitioner has been in judicial custody for the last more than one year, the investigation in the case is complete and the final report has been filed. Therefore, the petitioner may be enlarged on bail.
5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the contraband was seized from the conscious possession of the petitioner and that the petitioner is a person with criminal antecedents since he is involved in three other crimes i.e.; Crime Nos.1855/2019, 469/2019 and 506/2019. Crime No.506/2019 is registered against the petitioner for committing the offence under the NDPS Act. The contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. Hence, the application is to be dismissed.
6. The prosecution case against the petitioner is that; he was found in conscious possession of 58.975 gms of MDMA. However, as per the chemical analysis report, it has turned out that the contraband involved in the case is Methamphetamine and not MDMA. Even then, the contraband is of a commercial quantity. Moreover, it is an admitted fact that the petitioner is an accused in three other crimes.
7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows:
(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.
(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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
8. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonabl
The court established that the stringent conditions for granting bail under Section 37 of the NDPS Act must be strictly adhered to, requiring substantial evidence to support claims of innocence.
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.
For bail under NDPS Act, the accused must prove reasonable grounds for believing they are not guilty and unlikely to re-offend.
In drug-related cases, especially involving commercial quantities, bail is denied if there is no reasonable ground to believe the accused is not guilty.
Bail – When prosecution alleges possession of commercial quantity of contraband, rider under Section 37 of NDPS Act would apply.
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 ....
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 whil....
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