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2019 DIGILAW 884 (KER)

Shafi N. , S/o. Muhammed v. State of Kerala, Represented by Public Prosecutor, High Court of Kerala

2019-10-30

RAJA VIJAYARAGHAVAN V.

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ORDER : This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 1st accused in Crime No.347 of 2019 registered at Hosdurg Police Station, under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On 20.05.2019, at about 11.30 a.m., source information was received by the Sub Inspector of Police, Hosdurg Police Station that 3 persons travelling in a black Scorpio car and parked near to the Neeleswaram-Kasaragod National Highway were engaged in the trafficking of narcotic substances. The said information was recorded and a report was sent to the Superior Police Officer. At about 11.55 a.m., the Police Officers spotted the Mahindra Scorpio car parked by the side of the road. On seeing the Police personnel, one of the persons sitting in the front seat of the car, took to his heels and he could not be apprehended. However, the officers managed to restrain two persons who were sitting inside the car. A detailed search was conducted inside the vehicle, but the vehicle was found to be clean. The persons found sitting inside the car were informed of their rights under Section 50 of the Act. After securing the presence of a Gazetted officer, body search was conducted and from the shirt pocket of the applicant herein, 30 plastic covers containing a crystal like substance was found. Search was conducted on the body of the companion of the applicant and similar substance was seized from his possession as well. On interrogation, the applicant is alleged to have disclosed that the contraband found in his possession was MDMA. The quantity of contraband seized from the possession of the applicant was 19.150 gms. The contraband articles were seized and Crime No.347 of 2019 of the Hosdurg Police Station was registered as aforesaid. 4. Sri. Titus Mani Vetom, the learned counsel appearing for the applicant submitted that the applicant is innocent of all allegations. According to the learned counsel, the applicant has been undergoing incarceration from 20.05.2019 and prays that he be released on bail. 5. The learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that commercial quantity of MDMA was seized from the possession of the applicant herein. The source of the prohibited substance is being investigated. According to the learned counsel, the applicant has been undergoing incarceration from 20.05.2019 and prays that he be released on bail. 5. The learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that commercial quantity of MDMA was seized from the possession of the applicant herein. The source of the prohibited substance is being investigated. It is further submitted that the parameters laid down in Section 37 of the NDPS Act, 1985 will have to be satisfied as the quantity seized is commercial in nature. Highlighting the deleterious effects and deadly impact of the substance seized from the possession of the applicant, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by traffickers such as the applicant. The learned Public Prosecutor referred to the decisions of the Apex Court in Union of India (UOI) v. Shri Shiv Shanker Kesari [ (2007) 7 SCC 798 ] and Union of India v. Ram Samujh and Another [ (1999) 9 SCC 429 ] to support his contentions. 6. I have considered the submissions advanced and have gone through the materials on record. 7. The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where 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. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds” which 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. 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. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has to record a finding that while on bail the accused is not likely to commit any offence and there should exist some materials to come to such conclusion. 8. Having considered the submissions and after having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. The learned counsel has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that they are not guilty of the offence charged. 9. I am not impressed with the contention of the learned counsel that the long period of incarceration undergone by the applicant should persuade this Court to grant him bail. While considering an application for bail, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level. Having considered all the relevant facts, I am not inclined to release the applicant on bail at this stage. This application is accordingly dismissed.