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Advance bail not automatic, just because ‘nothing was recovered from the accused’: Kerala HC

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New Delhi: The Kerala High Court while hearing an anticipatory bail petition, said that advance bail in a Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) case could not be granted just because “nothing was recovered from the accused.”

The original advance bail application was filed on behalf of a person accused under Sections 22 (c), 28 and 29 of the NDPS at the Sessions Court. That court observed that since nothing was recovered from the accused, and there was no prima facie material available that indicates his active involvement in the crime. Therefore, he is being granted bail.

The state government filed a petition before the High Court challenging the order of the Sessions Court.

During hearing, Justice R Narayan Pishradi said that as per Section 37 (1) (b) (ii) of the Act, if the public prosecutor opposes the application of bail, then it is important that two conditions for granting bail to the accused be satisfied.

advance bail

“The first is that the court should be satisfied that there are reasonable grounds to believe that he is not guilty of the alleged crime against the accused,” said the judge.

“The second is that the court should also be satisfied that it has reasonable grounds to believe that the accused will not commit any crime after release on bail, or is unlikely to do so. Only after the satisfaction of these two conditions does the court have the power to grant bail to the accused,” he concluded.

The bench also said: “These two conditions are cumulative, not alternative. If either of these two conditions is not satisfied, then the ban continues and the accused cannot be released on bail.”

The Court also said that the court’s satisfaction must be based on “reasonable grounds“. The phrase ‘proper basis’ means that, prima facie, there should be more than one basis. At the same time it shows sufficient probable cause to believe that the accused is not guilty of the crime he is accused of.

The court explained that the reasonable belief required suggests that the facts and circumstances present are sufficient in themselves, which justifies the satisfaction that the accused is not guilty of the alleged crime. Thus it is mandatory to register satisfaction on both the aspects mentioned above.

The satisfaction of the court regarding the existence of both the above conditions is for a limited purpose, which is limited only to the question of releasing the accused on bail. In view of the order of the Sessions Court, the court stated that they did not consider both the conditions mentioned under Section 37 (1) (b) of the Act nor was any satisfaction recorded in respect of those conditions.

Read Also: 30-yr wait ends as Kerala HC orders state to build primary school in village

The bench said that it is also not possible to infer from the said order that the Sessions Court was satisfied with regard to these conditions. Therefore, the order of the Sessions Court is being cancelled. Also, instructions are being given that a fresh bail application be filed on behalf of the accused, to be considered afresh.

– India Legal Bureau

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