Abhinav T.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943** ## **BAIL APPL. NO. 2550 OF 2021** Crime No.20 of 2020 of Excise Range Office, Kuthiyathode, Alappuzha ## **PETITIONER/S:** > 0 ABHINAV T.S. AGED 19 YEARS S.O. SAJEEVAN, THIRUTHALIL HOUSE, AROOR PROJECT COLONY, AROOR VILLAGE, CHERTHALA TALUK, AROOR P.O. ALAPPUZHA, PIN - 688534 BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) SRI.M.S.ANEER ## **RESPONDENT/S:** > 0 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SMT.V.SREEJA, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 9.4.2021, THE COURT ON 17.05.2021 DELIVERED THE FOLLOWING: BA 2550/2021 -2- ## **O R D E R Dated this the 17[th] day of May, 2021 B.A.No. 2550 of 2021** Successive application for regular bail under Section 439 Cr.P.C filed by the fourth accused in Crime No.20 of 2020 of Excise Range Office, Kuthiyathode, Alappuzha, for having allegedly committed offences punishable under Sections 22(b), 22(c), 20(b) (ii) (A), 29 & 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS Act”). The applicant herein and the other co-accused had earlier filed bail applications as B.A.Nos. 7996 of 2020 and 250 of 2021 which were dismissed by this Court vide a common Order dated 08-02-2021. 2. To reiterate the prosecution case, in brief, that on 20.10.2020 at about 9.10 PM, the applicant and the other accused were found near a waiting shed at Keltron Ferry in Aroor by the Excise party to be in possession of 14 grams of ganja, 2.98 grams of Hashish oil, 170 mg of LSD Stamp, 630 mg of MDMA, in contravention of the aforesaid provisions. They were all arrested and remanded to judicial custody. They continue in remand. The applicant had approached the Sessions Court for regular bail. But, the same was dismissed vide order dated 20.11.2020 by the learned Sessions Judge, mainly because of the rigour under Section 37 (1)(b)(ii) of the NDPS Act. 3. The learned Sessions Judge has also relied on the decisions in _**Superintendent, Narcotic Central Bureau, Chennai v. R Paul Samy [2001 Cri.L.J. 117 (SC)]**_ and _**Union Of India v. Shiv Shankar Kesari [(2007) 7 SCC 798]**_ , and held that there are no reasonable grounds to believe that the applicants are not guilty and that there is no possibility of their committing a BA 2550/2021 -3- similar said offence while on bail. This Court also took a similar view and also relied upon the decision of the Apex Court in _**State of Kerala etc. v. Rajesh etc. [2020 (1) KHC 557 (SC)]**_ . 4. The learned counsel for the applicant Sri S.Rajeev strenuously attempted to impress upon this Court that the mandatory provision under section 50 of the NDPS Act has not been complied and hence, the applicant is entitled to bail. The non-compliance of Section 50 was not urged by the counsel appearing for the accused in the earlier bail application. Learned Public Prosecutor Smt. V. Sreeja, has vehemently opposed the bail again and submits that there is no change in circumstances to hold a different view than what was taken by this Court in the first instance. Sri Rajeev relies on the decision _**State of Rajasthan v. Paramanand and another [2014 KHC 4138: AIR 2014 SC 1384]**_ to bolster his argument. 5. The decision relied upon by the applicant’s counsel was rendered while considering an appeal against the acquittal of the accused for noncompliance of Section 50 of the NDPS Act. The Apex Court had relied upon the decisions in _**Dilip and another v. State of M.P [2007 KHC 3022:2007 (1) SCC 450]**_ to conclude that even in cases where recovery is made from a bag and not from the person, compliance of Section 50 of the NDPS Act was mandatory if the accused was subjected to a personal search, though nothing was recovered from him. It was also held that a search conducted in the presence of a Superintendent who was accompanying the detecting party was not sufficient compliance with Section 50 of the NDPS Act. BA 2550/2021 -4- 6. The learned counsel for the applicant submits that the facts in the instant case are analogous to the facts in the cited decision. It is submitted that the gazetted Officer who was called by the detecting officer was his own superior officer, which is clearly against the dictum of the Apex Court. 7. The law which has developed on the point in some of the judgments of the Apex Court may now be considered. In _**State of Punjab v. Baldev Singh, [1999 KHC 707 : 1999 (6) SCC 172]**_ a Constitution Bench of Apex Court considered, inter alia, questions as to what would be the resultant effect, in case the requirements of S.50 were not complied with. The conclusions arrived at in para 57 of the decision were as under: “57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of S.50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during BA 2550/2021 -5- a search conducted in violation of the provisions of S.50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case 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 the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by S.50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in S.50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of S.50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in S.50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of S.50 are mandatory or directory, but hold that failure to inform BA 2550/2021 -6- the person concerned of his right as emanating from sub-section (1) of S.50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in S.50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under S.54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of S.50. An illegal search cannot entitle the prosecution to raise a presumption under S.54 of the Act. (9) That the judgment in Pooran Mal case, 1974 (1) SCC 345 cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of S.50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search. (10) That the judgment in Ali Mustaffa case, 1994 (6) SCC 569 correctly interprets and distinguishes the judgment in Pooran Mal case, 1974 (1) SCC 345 and the broad observations made in Pirthi Chand case, 1996 (2) SCC 37 and Jasbir Singh case, 1996 (1) SCC 288 are not in tune with the correct exposition of law as laid down in Pooran Mal case, 1974 (1) SCC 345.” BA 2550/2021 -7- 8. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in _**Baldev Singh**_ (supra) clearly states that the conviction may not be based "only" on the basis of possession of an illicit article recovered from personal search in violation of the requirements under S.50 of the Act but if there is other evidence on record, such material can certainly be looked into. 9. The Apex Court has in _**State of Punjab v. Baljinder Singh and Another [2019 KHC 7150: AIR 2019 SC 5298]** ,_ considered the decision in _**Dilip and another**_ (Supra), the decision relied upon in _State of Rajasthan_ v. _Paramanand and Another’s_ case (Supra) and held thus: “18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of S.50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.” 10. As observed by the Supreme Court in the case of _**Union of India Vs. Shiv Shanker Kesari [2007 (7) SCC 798]**_ , the satisfaction which the court should reach for granting bail while considering S.37 of the 1985 Act, the expression “reasonable grounds” would mean something more than prima facie grounds. “It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and BA 2550/2021 -8- circumstances as are sufficient themselves to justify recording of satisfaction that the accused is not guilty of the offence charged”. 11. The Apex Court had in _**Narcotics Central Bureau Vs. R. Paulsamy, [AIR 2000 SC 3661] and Intelligence Officer Narcotics Control Bureau Vs. Sambhu Sankar and Anr., [2001 (2) SCC 562]**_ held that strict adherence to the provisions of S.37 of the 1985 Act is essential. Allegations had been made on behalf of the petitioners in these cases of violation of mandatory provisions relating to search and consequent seizure, following the judgment of the Constitution Bench of the Supreme Court in the case of _**Baldev Singh** (supra)_ , a mini trial cannot be held now to decide if the provisions of S.50 of NDPS Act have been infringed or not. In view of the authorities cited on this point, a detailed analysis of the allegation in the light of these ratios is warranted at this stage. Even if the materials in the case diary reveals prima facie breach of the provisions of S.50 of the NDPS Act, sub-paragraph (5) of para 57 in the case of _**Baldev Singh**_ (supra), which is reproduced earlier, requires that prosecution ought to be given an opportunity to establish its case at the trial. On facts, I do not find the breach alleged to have been committed to be so glaring or obvious that at this stage while considering this bail application, it could be anticipated that the prosecution shall fail at the trial on the points urged. Grant of bail is the discretionary power of the Court and exercise of such discretion requires examination of the materials in each case at the point of time the petitioners seek bail. Needless to add that the question of whether or not the procedure prescribed has been followed and the requirement of S.50 had been met, is a BA 2550/2021 -9- matter of trial. It would neither be possible nor feasible to lay down any absolute formula on that behalf. 12. In _**Vijaysinh Chandubha Jadeja v. State of Gujarat [2010 KHC 4832: AIR 2011 SC 77]**_ , a Larger Bench of the Apex Court held thus on the consequences of the amendment to S.50 NDPS Act: “As noted above, sub-sections (5) and (6) were inserted in S.50 by Act 9 of 2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections, viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases, a safeguard against any arbitrary use of power has been provided under sub-section (6).” After having anxiously considered the entire facts and circumstances, in this case, I am of the view that the applicant is not entitled to bail. The trial Court shall endeavour to expedite disposal of the case. Sd/- **ASHOK MENON JUDGE** jg