Abhimanyu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 BAIL APPL. NO. 5016 OF 2022** **CRIME NO.392/2022 OF INFOPARK POLICE STATION, ERNAKULAM** ## **PETITIONER/S:** **ABHIMANYU AGED 27 YEARS, GURUKRIPA HOUSE, CHUMATHRA P.O., KUTTIPPUZHA VILLAGE, THIRUVALLA, PATHANAMTHITTA, PIN - 689103 BY ADVS. M.V.BIPIN C.PRATHAPACHANDRAN PILLAI A.S.BEENU S.SUDARSANAN** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031** **BY ADV SMT.SEETHA.S – SR.PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA. No.5016/2022 ..2.. ## **O R D E R** Dated this the 11[th ] day of July, 2022 This is an application for regular bail. 2. The petitioner is accused No.2 in Crime No.392/2022 of Infopark Police Station, Ernakulam District, alleging commission of offence punishable under Section 22(c), 29 and 8(c) of Narcotic Drugs Psychotropic Substances(NDPS) Act, 1985. 3. The prosecution allegation is that, on 18.05.2022 at about 5.30 p.m., 26.34 gm of MDMA has seized from the possession of the 1[st] accused, from Apartment No.204 of SAJ ANNEX, Kakkanad which was taken on rent by the 2[nd] and 3[rd] accused. It is alleged that the 2[nd] and 3[rd] accused aided the 1[st] accused. 4. It is the contention of the petitioner that he has been falsely implicated in the said crime. In fact marriage between the petitioner as well as the 3[rd] accused is fixed and they are college-mates and are intending to get married. The 1[st] accused is the friend of the petitioner who was temporarily staying with the 2[nd] and 3[rd] accused while in search of a job. BA. No.5016/2022 ..3.. The allegations against the petitioner is not correct. The 1[st] accused was arrested by the shadow Police and they came to the rental house of the petitioner and seized MDMA from the 1[st] accused. Thereafter, arrest was recorded and the petitioner was remanded to judicial custody from 19.05.2022 onwards. Petitioner further submits that he has absolutely no involvement in the alleged crime. The petitioner specifically contended that the parameters for search and seizure as laid down as per the provisions of the NDPS Act was not followed. His specific case is that the investigation team reached the alleged place of occurrence at about 5.30 pm. It is the prosecution case that the investigating officer sought the assistance of a gazetted officer and the said officer came from the Ambalamedu Police Station at about 5.55 pm. The request was made at about 5.30 pm. The contention of the petitioner is that no search was made in the presence of the gazetted officer. It is the admitted case of the prosecution that no recovery was made from the petitioner herein. He was arrayed as an accused only on the ground that the alleged apartment was taken by the petitioner and the 3[rd] accused on rent. BA. No.5016/2022 ..4.. 5. When the matter was taken up for consideration, the learned counsel for the petitioner submitted that there is clear violation of the mandate of Section 50 of the NDPS Act and therefore, the search and seizure effected is absolutely illegal. It is submitted by the petitioner that while the investigating officer was on station duty, he got an information on 16.55 hrs by an unknown person that Narcotic drug(MDMA) is kept for sale in flat No.204 of Saj Annex in Palal Road, Kuzhickattumoola, Kakkanad, Near Link Valley flat and on getting said information, the factum of the information was entered in the GD and after preparing a notice as contemplated under Section 42 of the NDPS Act and after sending a search memorandum to the Judicial First Class Magistrate, Kakkanad, the investigating officer along with the police party along with witnesses, reached the front portion of the said studio apartment No.204 at about 11.30 and on ringing the calling bell of the said flat, one person came out and he was informed by the investigating officer that he is the Sub-Inspector of the Infopark police station and he came on an information that narcotic drug is kept in the said flat and that in the said room the investigating officer found two other BA. No.5016/2022 ..5.. persons also. When questioned, they replied their name and address and they are by name 1. Sanal, 2.Abhimanu and 3. Amrutha. They were informed by the investigating officer that they are entitled for being search in the presence of a gazetted officer or a magistrate and if they require, they can avail the mandate of the provision and they intimated that they can be searched in the present of a gazetted officer. Thereafter, the investigating officer contacted the Ernakulam Excise Office and he was intimated that no gazetted officers were available there. He thereupon called the Inspector of Police, Ambalamedu. Thereafter, Sri.Lal C. Baby, Inspector of Police Ambalamedu, came to the scene and he searched the Investigating Officer and his team and found that there are no narcotic drugs in their possession. Thereafter, the Inspector left the scene intimating that he has some other official engagement. It is submitted that thereafter the Investigating Officer himself searched the body of the accused and when the body of Sri.Sanal, the 1st accused, was examined, he found out a plastic cover, yellow in colour and when it was opened, he found some crystal like(underline supplied) particles in the said cover and it was found to be MDMA and when the same was BA. No.5016/2022 ..6.. enquired with the said Sanal, he intimated that it is a drug by name MDMA and it was brought for sale and he further intimated that the said contraband article was obtained from one Mubarak, who is staying in North Paravur. Thereafter the body search of the petitioner was done and from him only a mobile phone as well as a keypad phone was seized and thereafter the body of the 3rd accused was searched by the women police constable by name Shamna and an iphone of Apple company make was seized and (underline supplied) further, the room was searched and beneath the cot, 7 plastic covers with ziblock was seized. When the accused were questioned, it was intimated that those bags were kept for the sale of MDMA. 6. The seizure mahazar was produced by the learned Public Prosecutor for the perusal of this Court which also shows that though the petitioner was intimated that they are entitled for being searched in the presence of a gazetted officer or a magistrate and that in fact Inspector of Police, Ambalamedu, Sri.Lal C. Baby who is the gazetted officer, came to the spot, it is an admitted fact that he left the spot intimating that he has some official pre-occupations and it is BA. No.5016/2022 **==> picture [22 x 8] intentionally omitted <==** further stated that the Investigating Officer, who is only a Sub-Inspector of Police, himself conducted the search and when the search was conducted on the body of Sri.Sanal, the 1[st] accused, narcotic drugs in the category of MDMA was recovered. It is further seen from the said seizure report that though the quantity of MDMA along with the cover was shown as 28.19 gm, but when it was later weighed, it was ultimately found that the weight of the contraband article is 26.34 gms. 7. The question to be considered is whether the search and seizure was in compliance with the provisions of Section 50 of the NDPS Act, which reads as follows: 50. Conditions under which search of persons shall be conducted. 1. When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. 2. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). BA. No.5016/2022 ..8.. 3. The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. 4. No female shall be searched by anyone excepting a female. 5. When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). 6. After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 8. Going by the said provision, when the officer duly authorised under Section 42 is about to search any person, he shall if such person so requires, take such person without unnecessary delay to the nearest gazetted officer or any of the department mentioned in Section 42 or to the nearest Magistrate. Admittedly, the contraband seized is of commercial quantity. Going by the mandate of Section 37 of BA. No.5016/2022 **==> picture [22 x 8] intentionally omitted <==** the NDPS Act, if the quantity involved is a commercial one, the bail can be granted only on satisfaction of the twin conditions laid down therein. Section 37 of the Act reads as follows: ## 37. Offences to be cognizable and non-bailable.- - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - - (a) every offence punishable under this Act shall be cognizable; - (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and - (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. - (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 9. It is the settled law that the bar under Section 37 BA. No.5016/2022 ..10.. will not be an impediment if the accused is able to show on the basis of the prosecution records that there are reasonable grounds to believe that he/she is not guilty of the offence. 10. The learned counsel for the petitioner submitted that even though the investigating officer intimated the petitioner about the entitlement of being searched in the presence of the gazetted officer or a magistrate, and in fact a gazetted officer was called to the spot also, as is seen from the seizure mahazar, it is clear that the gazetted officer left the scene, before actual search was conducted and it has come out as per the seizure mahazar that it is the investigating officer who himself conducted the search. 11. This Court in _**Basant Balram v. State of Kerala(2019(1)KLT 523)**_ which held in paragraph 16 and 21 are as follows: 16. As held by the Apex Court in Baldev (supra), the safeguards contained in Section 50 of the NDPS Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. It was held that though the end result is important, but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen BA. No.5016/2022 ..11.. to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. It was observed that the cure cannot however, be worst than the disease itself. xxx xxx xxx xxx xxx xxx xxx xxx 21. Since I am prima facie satisfied that the seizure has been effected in contravention of mandatory provisions of Section 50 and as the contention of the applicants that a false case has been foisted by the detecting officer cannot be totally brushed aside, for the limited purpose of consideration of this application, it is held that this Court is satisfied that there are reasonable grounds for believing that the applicants are not guilty of such offence and that they are not likely to commit any offence while on bail. I also take into consideration the period of detention undergone, the stage of investigation and the reasonable possibility of securing the presence of the applicants at the time of trial. Having considered all the relevant aspects, I am of the view that the applicants can be enlarged on bail on stringent conditions. Before concluding, it is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and any opinion expressed above shall not be regarded as an opinion on merits during trial. ## 12. This Court in _**Muhammed Ameen v. Narcotic**_ _**Control Bureau (2020(1) KLT 1169)**_ held in paragraph 15 & 28 as follows: BA. No.5016/2022 ..12.. 15. In other words, the non obstante clause in the Section and sub-s. (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under S.439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub clause (b) of sub-section (1) of S.37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both the aspects noted above, is sine qua non for granting of bail under the NDPS Act. (see Union of India v. Rattan Mallik @ Habul [2009 (2) SCC 624]. ||xxx<br>xxx<br>xxx|xxx| |---|---|---| ||xxx<br>xxx<br>xxx|xxx| |28.|In the instant case, when the inbuilt|safeguards| ||are violated with impunity and|when the| ||mandatory formalities are breached and when the|| ||materials called for by the court which|would shed| ||a lot of light on the prosecution|version is| ||suppressed, it would result in travesty|of justice to| ||leave the question of their compliance to be|| BA. No.5016/2022 ..13.. looked into only at the stage of trial. I am of the view that it would result in failure of justice to force the applicants to be in custody till the trial is complete. The court's satisfaction within the meaning of sub-section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 235 of the Cr.P.C. Such a finding of guilty or not guilty can only be rendered after conclusion of the trial whereas the satisfaction that there are reasonable grounds for believing that the accused is not guilty as to be arrived at before the conclusion of trial, i.e., at any stage of investigation or in the course of trial itself. This Court cannot abdicate from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction. ## 13. This Court in _**Labeebul Mubarack v. State of**_ ## _**Kerala (2018(3)KLT 363)**_ held in paragraph 9 and 12 as follows: 9. It is by now settled by the Apex Court that the obligation of the authorised officer under subsection (1) of Section 50 of the Act is mandatory and requires strict compliance. In the case on hand, LSD Stamps were seized from the possession of the 1st accused. It was thereafter that a body search was conducted on the applicant and about 2.890 gms of Hashish were seized. As rightly held by the learned counsel, even if it is held that insofar as the 1st accused is concerned, BA. No.5016/2022 ..14.. it was case of chance seizure, the same cannot be said about the search conducted on the body of the applicant. The officer had occasion to seized narcotic drugs from the possession of the 1st accused. It was therefore imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or the Magistrate. This has been held to be so by the Apex Court in all the decisions cited above. It has been held that the obligation of the authorised officer under Sub Section (1) of Section 50 is mandatory and requires a strict compliance. The failure to comply with the provision would render the recovery of illicit article suspect. The right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the subject, viz., to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting false cases by the law enforcement agencies. xxx xxx xxx xxx xxx xxx xxx xxx 12. Since the recovery has been made in contravention of mandatory provisions of Section 50 the applicant cannot be prima facie held responsible for unlawful possession of Hashish. For the limited purpose of consideration of this application, it is held that this Court is satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. I am of the view that the applicant can be enlarged on bail on stringent conditions. 14. As per the judgments cited above, when there is violation of the mandatory provisions of Section 50, regarding BA. No.5016/2022 ..15.. search and seizure, the Court is within its powers to consider for the limited purpose of considering the bail application, as to whether the provision of Section 50 of the NDPS Act is complied with. It is clear from the seizure mahazar that the search and seizure was not in the presence of a gazetted officer. It is specifically stated in the seizure mahazar that the gazetted officer who was called by the investigating officer for conducting the search and seizure, has left that place, even before the search was conducted. In the instant case, the inbuilt safeguards against the false implication in the crime, the consequence of which are very severe, is seen violated and the formalities have been breached. 15. The court's satisfaction within the meaning of subsection 1(b)(2) of Section 37 of the NDPS Act is that there are reasonable ground to believe that the accused is not guilty of the said offence and the examination of this Court while at the time of granting bail is not a finding of no guilty of the accused. It can only be rendered after conviction of the trial. Since I am prima facie satisfied that the seizure have been effected in contravention of the mandatory provisions of Section 50 of the NDPS Act and taking into consideration the BA. No.5016/2022 ..16.. fact that the petitioner was present only because of the reason that petitioner was staying with the 3[rd] accused in the rented premises, I am satisfied that there is reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any such offence while on bail. The petitioner has already undergone detention from 18.05.2022 onwards. Taking all these aspects to consideration, I am of the view that the petitioner can be enlarged on bail subject to stringent conditions. It is made clear that these _prima facie_ observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as the opinion on the merit, during trial. In the result, the bail application is allowed. It is directed that the petitioner shall be released on bail, subject to the following conditions: (i) The petitioner shall execute bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the likesum to the satisfaction of the jurisdictional court; - (ii) Petitioner shall appear before the BA. No.5016/2022 ..17.. investigating officer in Crime No.392/2022 of Infopark Police Station, Ernakulam District on every Saturday at 11 am, until filing of final report; (iii) The petitioner shall not attempt to interfere with the investigation or to influence or intimidate any witness in Crime No.392/2022 of Infopark Police Station, Ernakulam District; (iv) The petitioner shall not leave India without the permission of the Court (v) The petitioner shall surrender his passport before the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail; (vi) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.392/2022 of Infopark Police BA. No.5016/2022 **==> picture [28 x 8] intentionally omitted <==** Station, Ernakulam District may file an application before the jurisdictional court, for cancellation of bail. Sd/- **VIJU ABRAHAM, JUDGE** ded/11.07.2022