S.37 NDPS Act | Long Incarceration No Ground To Grant Bail In NDPS Cases When Commercial Quantity Involved: Kerala High Court
In a recent judgement denying bail to two accused under the NDPS Act, the Kerala High Court clarified that “Section 37 of the NDPS Act does not lay down any stipulation that the accused in entitled to be released on bail if the trial does not commence within a particular period and additionally, the accused has to satisfy the twin conditions under Section 37 in addition to Section 439 of...
In a recent judgement denying bail to two accused under the NDPS Act, the Kerala High Court clarified that “Section 37 of the NDPS Act does not lay down any stipulation that the accused in entitled to be released on bail if the trial does not commence within a particular period and additionally, the accused has to satisfy the twin conditions under Section 37 in addition to Section 439 of the Code to be released on bail.”
Section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the Act with Section 37(b)(ii) specifically stating that;
(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 an offence and that he is not likely to commit any offence while on bail.
A single-judge bench of Justice CS Dias was hearing the accused's plea for bail.
The prosecution's case was that accuseds 1 and 2 were found in possession of methamphetamine in a car on the Iritty-Koottupuzha bridge while attempting to transport it from Karnataka to Kerala and were arrested.
The counsel for the petitioner argued that the petitioner has been falsely implicated, and incarcerated since 07.12.2022, with the investigation in the case completed. It was submitted that since the petitioners had no criminal antecedents, they are entitled to bail as provided in the decision in Fasil v. State of Kerala (2023).
In response to this, the prosecution pointed out that the decision in Fasil was based on the facts and circumstances of that case and could not be treated as a binding precedent in all bail applications, due to the rigour under Section 37 of the Act and the law laid down by the Supreme Court.
It was argued that considering the commercial quantity of the contraband involved in the case, the accused may not be let off on bail merely because he had been in judicial custody for the last fourteen months.
Additionally, it was submitted that a person accused of the offence under Sections 19, 24 and 27A of the Act and involving commercial quantities shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail.
The court pointed to the decision in State of Kerala v. Rajesh and Ors. (2020) where the court had stated that provisions under Section 37 of the NDPS Act are a sine qua non for granting bail to the accused under the NDPS Act.
The court also pointed out that in Fasil's case, the accused was only released on bail because of the absence of criminal antecedents, he had already been in custody for a year and finally, there was no likelihood of trial commencing.
Subsequently, the court rejected the petitioner's plea for bail stating that there cannot be any rule of thumb that lays down a time within which the trial should commence and that courts cannot read into a statute any additional grounds which are conspicuously absent.
It was pointed out that several procedural formalities had to be complied with before a trial under the Act could commence and that Section 36A of the NDPS Act provided an extended period of time for investigation and final reports in such cases.
Finally, it stated that the accused had failed to satisfy the twin conditions under Section 37 in addition to Section 439 of the Code and that when individual liberty is pitted against the larger public interest, it is the latter that must prevail over the former.
The court pointed out that the fact that the petitioner had been in judicial custody for fourteen months, the investigation had been completed and the charge sheet filed along with the commercial quantity of the contraband seized, meant that the rigour of Section 37 would apply with full force.
Accordingly, the bail application was dismissed.
Counsel for Petitioner: Advocates Sam Isaac Pothiyil, Suraja, Muhammed Suhair, Vipin MV, Abey George, Harish VS, Ramu Subhash and Ananthakrishnan R.
Counsel for Respondent: Advocates CS Hrithwik
Citation: 2024 LiveLaw Ker (29)
Case Title: Jaseer SM v. State of Kerala
Case Number: Bail Application No. 7238 of 2019.