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Judgment
A. Badharudeen, J
This is the third application for regular bail filed under Section 439 of the Code of Criminal Procedure by the third accused in crime No.1540/2022 of Ernakulam Town North Police Station, Ernakulam.
Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor.
The prosecution allegation is that, at about 11.20 hrs on 17.12.2022, accused Nos.1 to 3 were found in possession of 120 gm of MDMA and they were nabbed red-handedly. Pursuant to arrest and recovery, crime, alleging commission of offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act' hereinafter), was registered.
It is submitted by the learned counsel for the petitioner that, considering the tender age of the petitioner as 18½ years, she may be released on bail. It is further submitted by the learned counsel for the petitioner that the ratio in [2023 (3) KHC 212], Fasil v. State of Kerala would apply to the facts of the case since trial could not be completed within a period of six months in a case where the accused has been in custody for more than a year.
Whereas, the learned Public Prosecutor zealously opposed bail, pointing out the seriousness of the offences as well as involvement of commercial quantity of contraband. It is submitted that, in order to grant bail to an accused, who involved in possession of commercial quantity of contraband, this Court must satisfy the twin conditions provided under Section 37 of the NDPS Act.
Earlier bail application filed by the petitioner, B.A.No.861/2023, was dismissed as observed in paragraphs 8 to 15. The same are as under:
“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:
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.
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.
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.
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 to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotics Central Bureau v. R.Paulsamy [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], Union of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], Union of India v. Rattan Malik [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], Union of India v. Niyazuddin [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], State of Kerala v. Rajesh [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is one reported in [2023 Crl.L.J.799], Union of India v. Jitendra Giri.
On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients.
Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail.
Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail.”
Subsequently, the petitioner filed B.A.No.3594 of 2023 and this Court dismissed the same also observing that there is nothing substantiated to reconsider the regular bail plea at the instance of the petitioner.
In this case in the report of the Investigating Officer it has been stated that the petitioner has involvement in similar N.D.P.S offences before this occurrence. But the details of the antecedents not disclosed in the report. In this matter, the learned Special Judge as per letter dated 13.12.2023 informed this Court that the trial in this case, now pending as S.C.No.225 of 2023, could be expedited within a period of 4 months. In Fasil v. State of Kerala's case (supra), this Court observed as under:
“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”
Since the trial would be possible within a period of 4 months, the ratio in Fasil v. State of Kerala's case (supra) could not be applied in this case.
Therefore, directing the learned Special Judge (Additional District Judge-VIII, Ernakulam), to dispose of S.C.No.225/2023 within a period of 4 months from the date of receipt of a copy of this order, this bail application is dismissed.