Antony V.F. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 ``` ## **`CRL.MC NO. 6646 OF 2021`** ``` IN CRIME NO.21/2021 OF EXCISE AND ENFORCEMENT AND ANTINARCOTICS SPECIAL SQUAD, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` ANTONY V.F., AGED 35 YEARS, S/O. FELIX, VALIYAVEETTIL HOUSE, PATHIRAPALLY, ALAPPUZHA, PIN-688 521. ``` ``` BY ADV T.K.RAJESHKUMAR ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2EXCISE CIRCLE INSPECTOR, EXCISE AND ENFORCEMENT AND ANTI NARCOTICS SPECIAL SQUAD ERNAKULAM 682 031. ``` ``` BY SRI. ARAVIND V MATHEW, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON 21.03.2022, PASSED THE FOLLOWING: ``` Crl.M.C. No. 6646 of 2021 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 6646 of 2021 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of March, 2022 ## O R D E R This petition is filed seeking to quash the Final Report laid by Assistant Commissioner, Excise Crime Branch in Crime No.21/2021 of Excise, Enforcement and Antinarcotics Special Squad, Ernakulam for the offences punishable under Sections 20(b)(ii)(C), 25 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 2. Sri.Rajesh Kumar T.K., the learned counsel for the petitioner has raised several contentions while canvassing for quashing the Final Report. It was contended firstly that the petitioner was falsely implicated in the crime. Contention secondly raised was that the petitioner was staying on rental basis in a flat wherefrom the contraband was allegedly recovered. The contention thirdly raised was his lack of involvement in offences coming within the purview of the NDPS Crl.M.C. No. 6646 of 2021 -:3:- Act. The contention fourthly raised was non compliance of the mandatory requirements under Section 42(1) NDPS Act. 3. According to the learned counsel, a team of Excise officials had proceeded to the spot to detect the offence on the basis of receipt of an information about the offence from a reliable source. The information received was that one Mr.Athul Krishnan staying in Flat No.4B of Petro Palace owned by one Mr.Sivadasan A.K., S/o. K.P. Kunjunni has kept in his possession Ganja and Hashish Oil for the purpose of sale. According to him, the team proceeded to the flat at 10 p.m. immediately on obtaining the information. Therefore, the information received ought to have been reduced into writing and a search warrant, obtained from any of the authorities empowered to issue the same under sub section (1) of Section 42 of NDPS Act. According to him the seizure mahazar, copy of which is appended to the petition on hand as Annexure A1 contain a description that the information received was entered in the General Diary maintained at the office of the Excise. But, it does not contain any information that search warrant or authorisation has been obtained by the officer empowered under sub-section (2) of Crl.M.C. No. 6646 of 2021 -:4:- Section 41 NDPS Act, prior to the conduct of search in the flat. According to the learned counsel, the contraband was seized from a search of the building based on due information and therefore for failure to obtain search warrant prior to holding the search, the search and seizure can only be held to be violative of Section 42(1) NDPS Act by the officials and is liable to be defeated. According to him, his contention is well supported by the dictum of the Apex Court in State of Punjab v. Balbir Singh [(1994) 3 SCC 299]. 4. This Court has noticed from Annexure A1 that a reliable information was obtained by the Circle Inspector of Excise, Enforcement and Anti-narcotics Special Squad, Ernakulam, pursuant to which, he proceeded to the spot alongwith other officials. The gist of the information was recorded by him in the General Diary maintained at his office. The information transpired to him was that some prohibited substances under the NDPS Act have been kept concealed in a Flat wherein the petitioner herein is residing on rental basis. Since the contraband was allegedly kept concealed in Flat No.4B, the officers empowered has to apply to the court for getting a search Crl.M.C. No. 6646 of 2021 -:5:- warrant under Section 41(2) NDPS Act. A search warrant is mandatory to be obtained when the place proposed to be searched is a building. True that Annexure A1 does not incorporate an information that measures have been taken by the officer concerned to obtain search warrant prior to proceeding to conduct search of the building. Under Section 41(2) NDPS Act, the officers mentioned thereunder alone are empowered to conduct the search of a building or other places enumerated thereunder on the strength of a search warrant obtained from the jurisdictional Magistrate. Therefore, on the authority of a search warrant alone an officer under sub-section (2) of Section 41 NDPS Act is empowered to conduct a search in an enclosed place or building in the hours of the day between sunrise and sunset. Undoubtedly, the search was conducted at 10 p.m. on 25.03.2021. Therefore as contemplated under sub-section (2) of Section 41, the officers are empowered to proceed to the spot to hold search of the premises only after obtaining a search warrant. The Case Diary is not available to this Court. Material documents in the Case Diary were not obtained and placed for perusal. Copy of the final report laid on Crl.M.C. No. 6646 of 2021 -:6:- conclusion of investigation in Crime No. 21/2021 is produced. The purpose for which each of the witnesses was proposed for examination is well stated in the witness list against their names shown. One witness is found proposed to depose about compliance of Sections 42 and 50 NDPS Act. True that prosecution on the basis of a search held by an officer in violation of Section 42 NDPS Act is illegal. The Apex Court has held in Balbir Singh supra : “Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.” 5. The object of NDPS Act being to make stringent provisions for control and regulation of operations relating to drugs and substances and to avoid harm to the innocent persons and to avoid abuse of provisions by the officers, certain Crl.M.C. No. 6646 of 2021 -:7:- safeguards are consciously provided which in the context on hand have to be observed strictly. 6. The learned counsel for the petitioner has relied on the seizure mahazar prepared in the case to contend that it does not incorporate in it a description on compliance of Section 42(1) NDPS Act therein. Seizure mahazar is only a contemporaneous document meant to be prepared by the officials holding search and seizure to convince the court during trial that all the formalities contemplated while doing so are complied with by the officials. Obtaining a search warrant being a pre-requirement for holding a search in the building, it need not be described in the seizure mahazar. In the case on hand, the evidence proposed to be adduced by the prosecution through CW11, being compliance of Sections 50 & 42 NDPS Act, it cannot be said at this stage that the provisions have been violated. Crl.M.C fails for the reasons and is dismissed. Sd/- MARY JOSEPH, JUDGE. ttb Crl.M.C. No. 6646 of 2021 -:8:- ## **`APPENDIX OF CRL.MC 6646/2021`** ``` PETITIONER’S ANNEXURES: ``` ``` Annexure A1 ``` ``` THE MAHAZAR IN CRIME NO.21/2021 OF EXCISE AND ENFORCEMENT AND ANTI NARCOTICS SPECIAL SQUAD, ERNAKULAM. ``` ``` Annexure A2THE CERTIFIED COPY OF THE CHARGE SHEET/COMPLAINT FILED U/S 36A(1)(d) OF THE NDPS ACT, 1985 DATED 16.09.2021 SUBMITTED BEFORE THE DISTRICT AND SESSIONS COURT, ERNAKULAM. ``` //TRUE COPY// Sd/- P.S. TO JUDGE