Probable cause to believe accused is not guilty and not likely to commit a crime: Kerala HC3 min read

By- Akshay Gurnani

“What is to be seen is if there is reasonable ground for believing that the accused is not guilty of the offense he is charged with and further that he is not likely to commit an offense under the Act while on bail.”
The Kerala High Court recently explained the principles of bail applicable to those accused in drug hauls while disposing of an appeal challenging the grant of anticipatory bail to a man charged under the NDPS Act (State of Kerala v. Mohammed Riyaz).
“What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offense he is charged with and further that he is not likely to commit an offense under the Act while on bail.”
The Court explained, “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”, the Court added.
The Court was dealing with an appeal preferred by the State challenging the grant of anticipatory bail by a sessions court to a person accused of involvement in an illegal drug transaction.
The man stood accused of being a middle-man in a transaction involving commercial quantities of Methylenedioxy Methamphetamine (MDMA) after two persons were found in possession of MDMA at an OYO hotel room.
To decide on the State’s plea, Justice R Narayana Pisharadi observed that the Narcotics, Drugs and Psychotropic Substances Act, 1987 (NDPS Act) allows an accused bail under Section 37(1)(b) if:
• there are reasonable grounds to doubt his guilt, and
• if he is not likely to commit an offense when enlarged on bail.
The Court reiterated that the two conditions were “cumulative” rather than “alternative.”
“… recording of satisfaction on both aspects, as noted above, is the sine qua non for granting bail to a person who is accused of the offenses specified under clause (b) of sub-section (1) of Section 37 of the Act”, the Court said.
Justice Pisharadi explained further, “… ‘reasonable grounds’ means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offense he is charged with.”
The facts and circumstances forming the basis for such a belief would have to be sufficient in themselves to justify this belief, he went on to state. Justice Pisharadi also clarified that a meticulous weighing of evidence is not necessitated at the stage of bail.

In this case, however, the High Court found that the sessions court order made no mention of Section 37, NDPS Act. The judge observed, “… a bare perusal of the impugned order shows that the learned Additional Sessions Judge has not adverted to the twin conditions mentioned under Section 37(1)(b) of the Act and that he 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.”
Responding to the argument that the accused was not found in actual possession of the contraband, the Court also observed that it was not always necessary that the contraband was in the actual possession of the accused.
Even the illegal manufacture and trade in psychotropic substances would attract the offense, he stated. Apart from this, the accused in the case at hand was charged with abetment and conspiracy, the Court noted. In this light, the Court found, “… the observation in the impugned order that ‘nothing was recovered’ from the accused is not sufficient to infer that the learned Additional Sessions Judge had applied his mind to the provisions contained in Section 37(1)(b) of the Act.”
On these terms, the prosecution’s appeal was disposed of with a direction that the session court considers the bail plea afresh.

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