[NDPS] Anticipatory Bail Cannot Be Granted Merely Because 'Nothing Was Recovered' From Accused: Kerala HC [Read Judgment]

The Kerala High Court has held that anticipatory bail cannot be granted in an NDPS case merely because 'nothing was recovered' from the accused.

To allow an anticipatory bail petition filed by a person accused under under Sections 22(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Sessions Court noted that 'nothing was recovered' from him and no prima facie material are available to indicate his active participation in the crime. Therefore, it proceeded to grant the bail.

 While considering the petition filed by the State challenging order, Justice R. Narayana Pisharadi noted that as per Section 37(1)(b)(ii) of the Act, if the Public Prosecutor opposes the application, two conditions have to be satisfied for enlarging the accused on bail.

"The first one is that the Court shall be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged against him. The second one is that the Court shall be satisfied that there are reasonable grounds for believing that the accused is not likely to commit any offence while on bail. Only on satisfaction of these twin conditions, the Court has the power to enlarge the accused on bail."

The court said that these restrictions in granting bail to a person accused of the offences specified therein would apply to an application for granting anticipatory bail also and if either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. "These two conditions are cumulative and not alternative. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.", the judge added. The Court further said:

 The satisfaction contemplated, regarding the accused being not guilty, has to be based on "reasonable grounds". 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 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. Thus, recording of satisfaction on both aspects, as noted above, is sine qua non for granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) of Section 37 of the Act.

However, while considering an application for bail with reference to Section 37 of the 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 materials meticulously to arrive at a positive finding as to whether or not the accused has committed the offence alleged against him. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the 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.

Taking note of the impugned order of the Sessions Court, the court observed that it has not adverted to the twin conditions mentioned under Section 37(1)(b) of the Act and that it has not recorded any satisfaction with regard to those conditions. It is also not possible to infer from the impugned order that the court was satisfied with regard to those conditions, the judge said.  Thus, the order was set aside and the Court was directed to consider afresh the application for anticipatory bail filed by the accused.

Case name: State of Kerala vs. Mohammed Riyas

Case no.:Crl.MC.No.2707 OF 2020(G)

Coram: Justice R. Narayana Pisharadi

Counsel: PP Sajju S., Adv Nireesh Mathew

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