Bail can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 14th February 2020 

State of Kerala v. Rajesh (Criminal Appeal no. 154-157 of 2020)

Facts of the case: 

1. On 25 th May, 2018 at 5.30 p.m. in the parking area of the Hotel Aquarock situated at Mannanthala, accused A−1 to A−3 were found to be in joint possession of 10.202 kgs of hashish oil and currency notes worth Rs. 13,50,000/−. The Circle Inspector of Excise, Thiruvananthapuram arrested all of three accused A−1 to A−3 and seized the hashish oil, money and the vehicles which were used by them for transporting oil. The allegation against the accused respondent (A−5) was that he entrusted hashish oil to A−1 through A−2 for sale in the International market and Crime No. 14/2018 was registered against him for the offences punishable under Sections 20(b)(ii)(c) and Section 29 of the NDPS Act and after investigation, charge−sheet was filed on 10th May, 2019.
2. On an application filed for post−arrest bail by accused respondent(A−5); learned Additional Sessions Judge while noticing the mandate of Section 37(1)(b)(i) and (ii) of the NDPS Act observed that there was a prima facie material to presume that the accused committed the offence punishable under Section 20(b)(ii)(c) and Section 29 of the NDPS Act and rejected the application for post− arrest bail vide order dated 21st February, 2019 which came to be challenged at the instance of the accused respondent filing bail application before the High Court, and High Court dismissed the application vide order dated 12^th June 2019.
3. The accused respondents in Crime No. 19/2018 are registered at excise circle office, Thiruvananthapuram alleging commission of the offence punishable under Section 20(b)(ii)(c) of the NDPS Act. It may be noticed that A−5 in Crime No. 14/2018 is A−1(Shajimon) in Crime No. 19/2018 and other accused, i.e. Rajesh is A−3. The case of prosecution is that, on 25^th October, 2018 at about 5.45 PM at Aristo Junction, Thiruvananthapuram, accused respondent (Shajimon−A1) along with two other persons including A−3(Rajesh) were found to be in possession of 1.800 kg of hashish oil. They were arrested on 25th October, 2018 for offence punishable under Section 20(b)(ii)(c) of the NDPS Act. After investigation, charge− sheet was filed on 17th April, 2019. Both the accused respondents (A−1 and A−3) filed their respective post−arrest bail application before the Sessions Judge, Thiruvananthapuram which came to be dismissed after assigning cogent reasons under Order dated 21st February, 2019 and both of them preferred their bail application before the High Court. The High Court vide its order dated 10^th May, 2019 granted bail to A−1 and A−3 in Crime No. 19/2018 and observed that both the accused have completed 195 days in judicial custody and their further detention is not necessary. 

Judgment: 

1. Learned senior counsel for state submits that negation of bail is a rule and its grant is an exception under section 37 (1) (b) (ii) of the NDPS Act. For granting bail, the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he has been charged, and further he is not likely to commit any offence while on bail. Learned senior counsel further submits, that the conditions for granting bail, specified in Section 37(1)(b)(ii) are in addition to the limitations provided under the CrPC, or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the NDPS Act is uncalled for. In support of his submission, learned senior counsel has placed reliance on the judgment pronounced by Three−Judge Bench of Supreme Court in Satpal Singh Vs. State of Punjab^[1].  
2. Learned senior counsel for the respondents, while supporting the order passed by the High Court impugned in the proceedings submits that in Crime No. 14/2018, accused nos. 1 to 4 were granted post−arrest bail by the High Court vide Orders dated 4th October, 2018, 20th February, 2019 and 25th February, 2019 and the prosecution has not taken any steps to challenge the grant of bail to all other accused persons.
3. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that 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.
4. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non−obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The (1) first condition is that the prosecution must be given an opportunity to oppose the application; (2) second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

Supreme Court come to a conclusion that, Bail bonds of the accused respondents stand cancelled and they are directed to be taken into custody. The trial Court is directed to proceed and expedite the trial.

^[1] 2018(13) SCC 813.