Kerala High Court: In a matter concerning the impact of prima facie observations made during bail proceedings, P.V. Kunhikrishnan, J. held that simply because a prima facie opinion is arrived at by the bail court while deciding a bail application, it is not binding on the Trial Court at the time of the final hearing, nor it is binding on the Investigating Officer, debarring the collection of further evidence.
Background
The prosecution’s case was that, on 6-10-2023 with the knowledge of accused 2 (present applicant) and 3, accused 1 transported 5.125 kgs of ganja and 78.91 gms of Methamphetamine Hydrochloride in a car. The allegation against accused 2 is that he handed over 5.125 kgs of dried ganja to accused 1. There is an allegation that all three accused hatched a criminal conspiracy for illicit trafficking of ganja and Methamphetamine. Accused 2 was charged with offences punishable under Sections 20(b)(ii)B, 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). Thereafter, he was arrested and produced before the court on 07-01-2024 and remanded to judicial custody.
Issue:
If a lawyer argues a bail application by adverting to the merit of the case and insists for an order on merit, and if the court observes that, prima facie there is a case, whether the same is binding on the investigating authority or the Trial Court?
Analysis and Decision
The Court noted that accused 2 has earlier filed a bail application and reiterated that there is no bar in filing a second bail application if there is a change of circumstances. But if there is no change of circumstances after passing a bail order, the court need not entertain a further bail application.
After perusing Section 29 of the NDPS Act, the Court noted that an accused can be prosecuted even if no contraband is seized from him, provided there is evidence to show that there is abetment and criminal conspiracy. Thus, actual possession of contraband is not necessary to convict a person for the offences under the NDPS Act. If abetment and criminal conspiracy are proved, the accused can be convicted.
The Court noted that in the present case, there was a telephonic conversation between the accused 1and 2. Thus, when such a case is put up by the prosecution, the Court cannot observe that there is no prima facie case against accused 2 while considering a bail application. It is a matter of evidence.
The Court emphasised that a bail court need not consider the admissibility of the call details produced by the prosecution to prove conspiracy and abetment in all cases. The bail court should consider whether there are reasonable grounds for believing that the accused is not guilty of such an offence. For that purpose, the bail court can consider whether there is a prima facie case.
The Court, after examining the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), observed that stringent conditions are imposed for granting bail in cases involving offences punishable under Section 19, Section 24, Section 27A, and those involving commercial quantities of narcotic drugs or psychotropic substances.
As per Section 37(1)(b) of the NDPS Act, an accused shall not be released on bail or on his own bond unless the following conditions are met:
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The Public Prosecutor must be given an opportunity to oppose the bail application.
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If the Public Prosecutor opposes the application, the Court must be satisfied that:
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There are reasonable grounds for believing that the accused is not guilty of the alleged offence.
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The accused is not likely to commit any offence while on bail.
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The Court clarified an important principle regarding bail applications. It emphasized that if the accused raises a legal point or a merit-based argument, the bail court should not dismiss it merely by stating that it would amount to forming a prima facie opinion. A bail court’s prima facie finding is not binding on the trial court at the time of the final disposal of the case. Furthermore, such a finding does not constrain the investigating officer from conducting further investigation and collecting additional evidence, beyond what was already collected at the bail stage. Essentially, the bail court’s opinion is not definitive for the subsequent stages of the case.
Thus, the Court mentioned that when a question of law or a point on merit is raised by the accused in a bail application, it is the duty of the bail court to decide that point. But that decision will be a prima facie finding at the bail application stage. The bail court cannot neglect such points raised in a bail application, by merely stating that if those questions are decided prima facie, it will affect the investigation and the trial.
After taking note of Rohit Bishnoi v. State of Rajasthan, 2023 SCC OnLine SC 870, the Court reiterated that a prima facie finding on a point raised in a bail application is necessary and it should be supported by reason also. But it is not binding on the Investigating Officer to collect further evidence, nor it is binding on the court concerned to decide the matter.
In the present case, the Court observed that the prosecution has established a prima facie case. Consequently, it held that it was not in a position to entertain the bail application. However, the Court clarified that these findings were made solely for the purpose of deciding the bail application and would not be binding on the Trial Court. The Trial Court remains free to adjudicate the main case independently, without being influenced by any observations in the bail order.
[Anzar Azeez v. State of Kerala, Bail Appl. No. 2181 of 2025, decided on 20-02-2025]
Advocates who appeared in this case :
For Petitioner: Advocate M.S.Breez
For Respondents: Senior Public Prosecutor Sri Hrithwik CS
