IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 Bail Appl..No. 8421 of 2011() ----------------------------- AGAINST THE ORDER IN BA.4774/2011 Dated 21/06/2011 CRMP.174/2011 of SPL. COURT (NDPS ACT CASES), VADAKARA Cr.No.502/2010 OF VELLAYIL POLICE STATION, KOZHIKODE DT. .................... PETITIONER/ACCUSED NO.1 -------------------------------- K.P. MOIDU, AGED 43, S/O. AMMAD MUSALIAR, KULAMULLA PARAMBATH HOUSE, PATHIRAPPATTA, VATTOLI, KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A.No.8421 OF 2011 --------------------------------- Dated this the 30th day of November, 2011 ORDER The petitioner had filed Bail Application No.5502 of 2011 and that Bail Application was dismissed by the order dated 27th July, 2011. For the sake of convenience, the order in B.A.No.5502 of 2011 is extracted below: “This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.502 of 2010 of Vellayil Police Station, Kozhikode District. 2. The offences alleged against the petitioner are under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act. 3. The prosecution case is that on 18/12/2010, while the accused persons were travelling in a vehicle, it was intercepted by the Assistant Commissioner of Police. On inspection, it was found that the first accused was in possession of 755 gms. of brown sugar contained in 108 capsules. The brown sugar was found tied in a bath towel around his waist. The petitioner was arrested on 18/12/2010 and he was remanded to judicial custody. B.A.No.8421 OF 2011 2 4. The learned counsel for the petitioner submitted that accused Nos.2 to 6 were granted bail by the Special Court for N.D.P.S. cases. After completing the investigation, charge sheet was laid on 09/06/2011 and the case is now pending as S.C.No.21 of 2011 on the file of the Special Court for N.D.P.S. cases, Vatakara. The learned counsel for the petitioner also submitted that the petitioner is not involved in any other case of similar nature. The learned Public Prosecutor very vehemently opposed the Bail Application. The quantity of brown sugar involved in the case constitutes commercial quantity. Section 37(1)(b) of the N.D.P.S. Act provides that in case where the Public Prosecutor opposes the Bail Application, bail shall not be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 5. The learned counsel for the petitioner submitted that the sampling was not made in a proper manner in the present case. All the substances from the 108 capsules were mixed together and samples were taken. According to the counsel, this is an illegal sampling. The counsel submitted that this can be considered as a ground for arriving at the conclusion that there are no reasonable grounds for believing that the petitioner is guilty. In AIR 2000 SC 3661 Superintendent, Narcotics Central Bureau, Chennai Vs. R.Paulsamy it was held thus: “6. In the light of Sec.37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is B.A.No.8421 OF 2011 3 unfortunate that matters which could be established only in offence regarding compliance with Secs.52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections.” 6. In 2009(2)SCC 624 Union of India Vs. Rattan Mallik Alias Habul, Supreme Court held thus: “12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on “reasonable grounds”. 13. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie B.A.No.8421 OF 2011 4 grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of “not guilty”. At this stage it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. 15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore- extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent;(ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under B.A.No.8421 OF 2011 5 the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of Section 37 of the NDPS Act.” 7. On the basis of the materials available and in the light of the principles laid down in the decisions of the Supreme Court referred to above, it cannot be concluded that there are reasonable grounds for believing that the petitioner is not guilty of the offence even if the case put forward by the petitioner is accepted. There is also no material to arrive at the conclusion that the petitioner is not likely to commit any offence while on bail. For the aforesaid reasons, the Bail Application is dismissed. The Special Court for N.D.P.S. Cases, Vatakara shall expedite the trial of the case.” 2. The learned counsel for the petitioner submitted that all the other accused were granted bail and there is no reason why the same benefit should not be granted to the petitioner. The fact that the other accused were granted bail was taken note of while disposing Bail Application No.5502 of 2011. Still, bail was not granted to the petitioner and his Bail Application was dismissed. A direction was also issued to the Special Court to expedite the trial of the case. 3. The learned counsel for the petitioner submitted that B.A.No.8421 OF 2011 6 the trial of the case is not scheduled yet. Already there is a direction to the Special Court to expedite the trial of the case. It is not necessary to issue further direction. The Bail Application is accordingly, dismissed. K.T.SANKARAN, JUDGE cms