‘Reasonable Grounds’ For Grant Of Bail U/S 37 NDPS Act Implies Something More Than Prima Facie Grounds: Kerala High Court Reiterates

Justice A. Badharudeen while dismissing the bail application observed that the rider under Section 37 of the NDPS Act would apply for possession of commercial quantity of contraband and that bail can only be granted if there are reasonable grounds for believing that the accused is not guilty of the offence and that he will not commit any offence if released on bail.

The Counsels for the petitioner contended that the petitioner had no criminal antecedents and that he was implicated only on the basis of confession statements of other persons accused in the crime.

The Senior Public Prosecutor Smt. Neema T V on the other hand vehemently opposed the bail application on two main grounds. Firstly, that the petitioner had previously been involved in another crime under the NDPS Act and secondly, that the prosecution records include CCTV footage of the petitioner that would prima facie establish his involvement in the crime.

The court observed that when considering a bail application with reference to S.37 of the NDPS Act, where the bail application is being opposed by the Public Prosecutor, bail can only be granted if two conditions are satisfied: (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail.

The court further observed that the expression ‘reasonable grounds’ under Section 37 of the NDPS Act implies 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,” the Supreme Court had observed in Union of India v. Shiv Shankar Kesari.

However, at this stage it is not for the court to consider the matter as if it is pronouncing a judgment of acquittal or guilt, the court clarified.

The court further observed that under of Section 37 of the NDPS Act, the petitioner cannot be granted bail without recording satisfaction of the above twin ingredients:

“On a plain reading of Section 37(1) (b) and 37(1)(b) (ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act”

After considering the facts and circumstances of the case, which includes the CCTV footage that connects the petitioner to the crime and his involvement in another NDPS case, the court held that the conditions for grant of bail are not met. The court observed that with the material on record it cannot be held that the petitioner is innocent of the allegations and that he will not commit any offence if he is released on bail, and thereby dismissed the bail application.

Citation: 2023 LiveLaw (Ker) 56