CASE ANALYSIS – State of Kerala v. Rajesh & Ors.

INTRODUCTION: 

In the criminal jurisprudence arena, Summoning an “undiluted commitment to Section 37 of the NDPS Act,” the Supreme Court in State of Kerala v. Rajesh reaffirmed that offences pertaining to commercial quantities of drugs give rise to a strong presumption against bail. Justice Ajay Rastogi began the opinion with a clear rebuke: 

“Liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.“

The ruling is now a premier guide to the extent to which courts have to strictly enforce the twin‑condition test of S. 37(1)(b)(ii) before granting an accused bail, and it makes clear that post-arrest freedom cannot override the legislative intent to counter the drug scourge.

FACTS OF THE CASE : 

There are two distinct criminal cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), both being registered by the Excise Circle Office, Thiruvananthapuram, relating to possession and dealing in hashish oil, a commercial quantity drug under the NDPS Act. The two main accused involved are:

1. Shajimon: Accused No. 5 in Crime No. 14 of 2018 and Accused No. 1 in Crime No. 19 of 2018
2. Rajesh: Accused No. 3 in Crime No. 19 of 2018, 

B. Crime No. 14 of 2018

On 25 May 2018, at approximately 5:30 PM, an incident occurred in the car park of Hotel Aquarock, located at Mannanthala in Thiruvananthapuram, Kerala. During this operation, the Excise Department apprehended three individuals—Accused Nos. 1 to 3—who were allegedly found in joint possession of 10.202 kilograms of hashish oiland ₹13,50,000 in cash. The location and timing of the seizure were crucial in establishing the coordination and intent behind the act, as it was suspected that the contraband was being prepared for illegal sale, potentially in international markets. The seizure took place under the supervision of the Circle Inspector of Excise, who also confiscated the vehicles suspected to have been used for transporting the narcotics.

Individual Role of Shajimon (A-5):

Shajimon is accused of having handed over the hashish oil to A-1 (via A-2) for sale in the export market. This resulted in his being charges under: Section 20(b)(ii)(C), Section 29

Procedural Status: A charge-sheet was submitted against the accused on 10 May 2019. Before that, on 21 February 2019, the learned Additional Sessions Judge turned down Shajimon’s application for bail after arrest, after observing prima facie material indicating his complicity in serious offences. However, on 10 May 2019, the Kerala High Court released Shajimon on bail, observing that other co-accused (A-1 to A-4) were already released on bail and not applying Section 37 of the NDPS Act in substance.

C. Crime No. 19 of 2018

On 25 October 2018, at approximately 5:45 PM, an operation was carried out at Aristo Junction in Thiruvananthapuram, during which Shajimon (Accused No. 1), Rajesh (Accused No. 3), and another individual were allegedly found in possession of 1.800 kilograms of hashish oil. Acting on credible information, the Excise authorities apprehended the trio at the scene and seized the contraband, which exceeded the threshold for “commercial quantity” as defined under the NDPS Act. Consequently, all three were arrested on the same day, and offences were registered against them under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which deals with the illegal possession of cannabis resin products in commercial quantities.

Procedural Status: After proper inquiry, the charge-sheet was submitted on 17 April 2019. Post-arrest bail applications moved by A-1 (Shajimon) and A-3 (Rajesh) were dismissed by the Sessions Court on 21 February 2019 on strict compliance with Section 37 NDPS Act. Notwithstanding this, the Kerala High Court released them on bail on 10 May 2019, noting that the two had spent 195 days in judicial custody and that there was no investigation left against them. The High Court cited Section 37, but merely to reflect application of mind—not to demonstrate compliance with its twin statutory prerequisites (i.e., reasonable belief that the accused are not guilty and are unlikely to commit the same offence while on bail).

Shajimon’s criminal records lent credibility to the prosecution’s arguments against granting bail. Previously, he had been convicted under Section 55(a) of the Abkari Act in Sessions Case No. 235 of 2005, and had also been booked in Crime No. 38 of 2018 for threatening a witness related to Crime No. 14 of 2018, reflecting a pattern of behavior intended to hinder justice. Following the grant of bail by the High Court on 10 May 2019, the State of Kerala made an application in terms of Section 482 of the CrPC requesting the recall of the bail orders on the ground that the orders had been issued contrary to the requirements under Section 37 of the NDPS Act, which lays down stringent conditions of bail in commercial quantity cases.

However, the High Court rejected the recall application on 12 June 2019, stating in paragraph 16 of its order that even if the original bail orders were erroneous or lacked application of mind, the court itself had no authority to review or recall those orders. It held that the proper remedy lay in approaching a superior forum, namely, the Supreme Court of India. This rejection ultimately prompted the present series of criminal appeals before the Supreme Court filed by the State of Kerala, challenging both the bail orders dated 10 May 2019and the dismissal of the recall plea on 12 June 2019.

Commercial Quantity Classification : The Central Government, vide Notification dated 19 October 2001, declared hashish oil (Sl. No. 13) as commercial quantity. Any amount over 1 kilogram is considered commercial quantity under the NDPS Act, thus attracting the strict bail conditions under Section 37. In both Crime No. 14 of 2018 and Crime No. 19 of 2018, the seizures (10.202 kg and 1.800 kg respectively) decisively surpassed the commercial quantity benchmark.

ISSUES :

1. Whether the Kerala High Court erred in granting bail without recording satisfaction of the twin conditions in S.37(1)(b)(ii) NDPS Act?
2. Whether parity with co‑accused, prolonged custody, or investigative completion can override S.37 embargo?
3. Whether the High Court could refuse to recall its own erroneous bail order, relegating the State to appeal?

JUDGEMENT : 

The Supreme Court held that the High Court had made a mistake in granting bail to the accused without following the compounding conditions specified under Section 37(1)(b)(ii) of the NDPS Act. It noted that there was no judicial satisfaction entered by the High Court to reflect that the accused were innocent of the charges made or that they were unlikely to commit any offence while released on bail. Thus, the bail orders were held to be legally unsound and unsustainable.

On the second point, the Court ruled that the High Court was not justified in granting bail on reasons such as parity with co-accused, long custody of 195 days, or completion of investigation. These considerations, the Court observed, could be applicable under normal bail provisions, but not in commercial quantity offences under the NDPS Act, where the statutory bar under Section 37 has to be adhered to strictly. The Court therefore held that such considerations could not take precedence over express limitations imposed by law.

As far as the third point is concerned, the Supreme Court held that the High Court had erred in declining to recall its wrong bail orders made under Section 482 CrPC. The Court opined that once it was evident that the bail orders were passed against the statutory requirement, the High Court was mandated and authorized to withdraw and rectify them. The failure to do so was found to be wrong and against established principles of law.

the Supreme Court granted the appeals made by the State . It revoked the impugned orders of bail dated 10 May 2019 and the recall dismissal order dated 12 June 2019. The bail bonds of the accused stood cancelled, and they were ordered to be arrested forthwith. 

REASONING: 

1. In determining the legality of bail approved by the Kerala High Court, the Supreme Court essentially examined the extent and purpose of Section 37(1)(b)(ii) of the NDPS Act that prescribes rigorous conditions for releasing on bail in offences relating to commercial quantities of narcotic drugs. The Court restated that the power of granting bail under this section is heavily limited, and cannot be invoked unless the Court is convinced that there are reasonable grounds to hold that the accused is not guilty and will not be likely to commit any offence while on bail. The High Court, in the impugned order, did not record either of these two compulsive findings.
2. The Court heavily depended on the judgment in Union of India v. Ram Samujh , which observed that the legislative intent in Section 37 is to make sure that those who are accused of drug trafficking do not easily get bail, looking at the aggravating effects and social risk of such offenses. The Supreme Court observed that in Ram Samujh, it was underlined that the courts have to rigidly follow the requirement under the statute and not sidestep it on procedural grounds or equitable reasons.
3. In aid of the State’s case, the Court also relied on Durand Didier v. State of Goa, wherein it was noted that drug smuggling is a fast-spreading evil that does grievous harm, especially to weaker sections of society such as students and youth. This was a basis for Parliament’s enacting stringent bail conditions through the NDPS Act. The Supreme Court concurred that the High Court had not taken this broader public interest angle into view while granting bail.
4. The appellant-State had also drawn support from Satpal Singh v. State of Punjab, where the Supreme Court reaffirmed that the twin requirements under Section 37 are conjunctive and obligatory. The Court has to be convinced on both grounds — innocence and non-recidivism — prior to the grant of bail. The Supreme Court in the instant case adopted this interpretation and observed that the Kerala High Court had failed to utilize this test and hence its order was legally defective.
5. On parity and extended detention issues raised by the respondents, the Supreme Court decided that grant of bail to co-accused or the fact that the accused had been in custody for 195 days could not prevail over the statutory bar under Section 37. Every application for bail needs to be judged on a case-by-case basis, and not based on comparative considerations, particularly when handling commercial quantity offences.
6. The Supreme Court also decided the High Court’s denial to retract its own bail order by way of a Section 482 CrPC application made by the State. The High Court had rejected the application, saying that even if the order was wrong, there was no authority under which it could be recalled. The Supreme Court did not agree with this position and laid down the law that when a bail order is granted contrary to statutory norms, the High Court not only has the jurisdiction but the duty to reappreciate and rectify such an illegality, especially when relating to offences under special acts like the NDPS Act.
7. Following these authorities and the law of the statute, the Court held that the orders of bail by the High Court were made beyond its jurisdiction, and the rationale applied was contrary to settled principles of law. Thus, it set aside the bail of 10 May 2019 and the High Court’s order refusing to recall the same on 12 June 2019. The accused were ordered to be brought into custody, and the trial court was directed to hasten the proceedings.

CONCLUSION : 

State of Kerala v. Rajesh is presently the Supreme Court’s model judgment on bail in commercial‑quantity NDPS cases. By revoking bail extended on “liberal” considerations, the Court re‑balanced individual liberty against collective security, demanding judicial discretion to work strictly within statutory boundaries when faced with the evil of drug trafficking.

References: 

1. State of Kerala v Rajesh (12 SCC 122 2020) – https://narcoordindia.gov.in/narcoordindia/Judgements/1656324291-3414-DOC-State_Of_Kerala_vs_Rajesh_on_24_January_2020.PDF
2. Union of India v. Ram Samujh [(1999) 9 SCC 429]
3. Durand Didier v. State of Goa [(1990) 1 SCC 95]
4. Satpal Singh v. State of Punjab [(2018) 13 SCC 813]

Written by Reethikaa Ganesan; an intern under Legal Vidhiya.

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