MUHAMMED BASHEER v. STATE OF KERALA

SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

05.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A.No.5628/2024 -:2:- Dated this the 5th day of August, 2024 O R D E R The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the first accused in Crime No.7/2024 of the Excise Range Office, Ponnani, Malappuram, which is registered against the accused for allegedly committing the offences punishable under Sections 22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short, ‘NDPS Act’). The petitioner was arrested and remanded to judicial custody on 19.02.2024.

2. The essence of the prosecution case is that; on 19.02.2024, at around 22.40 hours, the accused were found in conscious possession of 305.263 grams of 'methamphetamine' in a house bearing No.12/36-B and in a car bearing registration No.KL-54-C-5228. The accused were arrested on the spot with contraband articles. Thus, the accused have committed the above B.A.No.5628/2024 offences. -:3:-

3. Heard; Sri. Salim V.S. 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. There is no material to substantiate that the petitioner has committed the offences. The Investigating Officer has violated the mandatory provisions under Sections 42 & 50 of the NDPS Act. The petitioner has been in judicial custody for the last 164 days, there is no material to substantiate that the contraband was recovered from the petitioner, the investigation in the case is practically complete, and recovery has been effected. Therefore, the petitioner may be enlarged on bail.

5. The learned Public Prosecutor opposed the application. He submitted that there are incriminating B.A.No.5628/2024 -:4:- materials to substantiate the petitioner’s involvement in the crime. The contraband was seized from the conscious possession of the accused. The investigation in the case is in progress. Since the contraband involved in the case is of a commercial quantity, the rigor under Section 37 of the NDPS Act applies to the facts and circumstances of the case. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed.

6. The prosecution allegation is that the petitioner, along with the accused, were found in conscious possession of 305.263 grams of 'methamphetamine'. It is alleged that the contraband was received from an African national in Bangalore and brought to the State of Kerala. The accused were arrested on the spot with the contraband articles.

7. On an evaluation of the materials on record, it B.A.No.5628/2024 -:5:- can be seen that there are incriminating materials to substantiate the petitioner’s involvement in the above crime. The contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts and circumstances of the case.

8. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the NDPS Act, the Honourable Supreme Court in Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798] held as follows: “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression 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”.

9. In Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for B.A.No.5628/2024 -:6:- Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”.

10. Indisputably, the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts of the case.

11. On an overall scrutiny of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, B.A.No.5628/2024 -:7:- seriousness and gravity of the accusations attributed against the petitioner, the potential severity of the punishment that can be imposed on the petitioner, the commercial quantity of the contraband involved in the case and the prima facie material that show the petitioner’s involvement in the crime, I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit similar offences if he is enlarged on bail. The petitioner has not made out any valid ground to dilute the rigour under Section 37 of the NDPS Act. The application is meritless and it is only to be rejected. Resultantly, the application is dismissed. DST/05.08.24 Sd/- C.S.DIAS,JUDGE //True copy// P.A. To Judge