BAIL APPL. Nos. 7177 & 7182 of 2022, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944** ## **BAIL APPL. NO. 7177 OF 2022** **CRIME NO.17/2022 MALAPPURAM EXCISE RANGE OFFICE, MALAPPURAM** ## **PETITIONER/ACCUSED NO.1:** **UBAIDULLA,AGED 26 YEARS** **S/O MUHAMMED, KEERANGATTUTHODY HOUSE, MORAYOOR DESOM MORAYOOR VILLAGE, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 673638** **BY ADVS. P.MOHAMED SABAH,LIBIN STANLEY SADIK ISMAYIL,SAIPOOJA R.GAYATHRI,M.MAHIN HAMZA** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 EXCISE INSPECTOR EXCISE RANGE OFFICE, MALAPPURAM, MALAPPURAM DISTRICT, PIN - 676505** **BY ADVS.** **PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)** ## **OTHER PRESENT:** **PP - K.A.ANAS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.12.2022, ALONG WITH Bail Appl..7182/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.7177 & 7182 of 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 BAIL APPL. NO. 7182 OF 2022** **CRIME NO.17/2022 OF MALAPPURAM EXCISE RANGE OFFICE, MALAPPURAM PETITIONERS/ACCUSED NOS.2 AND 3:** - **1 ABDURAHIMAN,AGED 56 YEARS,S/O AVARAN, MUKKANNAN KEERANGATTUTHODI HOUSE, MORAYOOR DESOM, MORAYOOR VILLAGE, KONDOTTY TALUK, PIN - 673638** - **2 ZEENATH,AGED 47 YEARS,W/O ABDURAHIMAN, MUKKANNAN KEERANGATTUTHODI HOUSE, MORAYOOR DESOM, MORAYOOR VILLAGE, KONDOTTY TALUK, PIN - 673638** **BY ADVS.** **P.MOHAMED SABAH,LIBIN STANLEY SADIK ISMAYIL,R.GAYATHRI SAIPOOJA,M.MAHIN HAMZA** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 EXCISE INSPECTOR,EXCISE RANGE OFFICE, MALAPPURAM, MALAPPURAM DISTRICT, PIN - 676505** **BY PUBLIC PROSECUTOR SRI.K.A.ANA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **14.12.2022, ALONG WITH Bail Appl..7177/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.7177 & 7182 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. B.A. Nos.7177 & 7182 of 2022 .................................................................** Dated this the 14[th] day of December, 2022 ## **ORDER** These are applications for regular bail. 2. The petitioner in B.A.No.7177 of 2022 is the 1[st] accused and petitioners in B.A.No.7182 of 2022 are accused Nos. 2 and 3 in Crime No.17 of 2022 of Malappuram Excise Range alleging commission of offences punishable under Sections 8(c), 20(b)(ii)C, 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. The prosecution case in brief is that while Excise Inspector, Malappuram Excise Range Office and party were conducting vehicle inspection on the basis of secret information on 31.07.2022 at 2.20 a.m. Near Morayur VHM Higher Secondary Schoo, A1 was found to have transported 5.5 kgs of ganja on scooter bearing registration No.KL 10 AY 2817 and on the basis of the information given by A1, 69.169 kgs of ganja and 52 grams of MDMA were seized from the house of A2 and A3 and BA Nos.7177 & 7182 of 2022 4 from the car bearing registration No.KL 84 A 4775 parked in the car porch of the house. A2 and A3 are parents of A1. 4. The petitioners were arrested on 31.07.2022 and are in custody since then. The contention taken by the learned counsel for the petitioner is that only 5.5 kg of ganja was seized from the 1[st] accused and he cannot be made liable for the other contrabands which was seized from the house of accused Nos. 2 and 3 and he relies on the judgment in _**Amar Singh Ramjibhai Barot v. State of Gujarat, AIR 2005 SC 4248**_ and _**Musthaque Ahammed @ Muthu S/o Shaik Ali v. Sub Inspector of Police, 2020 (3) ILR (Ker) 307**_ to contend for the position that Section 29 of the NDPS Act could not be evoked if the prosecution could not prove conspiracy. Petitioner further relies on _**Tofan Singh v. State of Tamil Nadu, AIR 2020 SC 5592**_ to contend that the confession statement of the co-accused has no evidentiary value. It is further contended that there is violation of Section 42 of the NDPS Act in as much as no information was sent to the immediate superior officer and further that since the search is conducted between sunset and sunrise without obtaining search warrant, the grounds of belief should be prepared and sent to the immediate superior officer. To substantiate the said contention, learned counsel for the petitioners rely on judgment in _**Karnail Singh v. State of Haryna,**_ BA Nos.7177 & 7182 of 2022 5 _**(2009) SCC 8 539, Sukhdev Singh v. State of Haryana ( 2013) 2 SCC 212**_ , _**State of Rajasthan v. Jagraj Singh @ Hansa, (2016) 11 SCC 687**_ and _**Sarija Banu (A) Janarthani v. State, (2004) 12 SCC 266**_ . The learned counsel for the petitioner relying on _**Boota Singh v. State of Haryana, 2021 (3) KLT 105**_ contended that a private vehicle in a public place can be treated only as a private place and procedure prescribed under Section 42 of the NDPS Act has to be complied with. It is also contended that in the above said circumstance, the embargo under Section 37 of the NDPS Act will not be applicable in the present case and they are entitled for bail and the petitioner relies on the judgment in _**Basant Balram v. State of Kerala, 2019 (1) KLT 523, Labeebul Mubarak v. State of Kerala, 2018 (3) KLT 263 and Mohamed Ameen v. NCB, 2020 (1) KLT 1169.**_ 5. The learned Public Prosecutor submitted that on getting prior information, the vehicles were being checked and 5.5 kgs of ganja which was transported in Hero Maestro scooter was seized and the 1[st] accused was arrested. On the basis of the ionformation given by the 1[st] accused the house where accused 2 and 3 were residing was searched and from the car bearing registration No.KL 84 A 4775 parked in the porch of the said house 69.169 kgs of ganja, 52 grams of MDMA and two mobile phones BA Nos.7177 & 7182 of 2022 6 were seized and accused 2 and 3 were also arrested. The specific case of the learned Public Prosecutor is that the seizure was from a scooter while 5.5 kgs of ganja was being transported and the 1[st] accused was arrested at the spot. In view of Section 43 of the NDPS Act the contention of the petitioner that there is violation of Section 42 inasmuch as the conditions stipulated in the said Section of the Act have not been complied with. Learned Public Prosecutor further submitted that as regard the search conducted in the house as well as the car parked in the porch of the house, there is strict compliance of Section 42 as is evident from Annexures-4 and 5 produced in B.A.No.7177 of 2022. To which the learned counsel for the petitioner specifically relying on the judgment in _**Boota Singh**_ 's case supra submitted that a private vehicle in a public place can be treated as only a private place and hence procedure prescribed under Section 42 of the NDPS Act has to be strictly complied with. 6. Now the question to be considered is whether seizure of 5.5 kgs of ganja from the scooter is vitiated for non-compliance of Section 42 of the NDPS Act. Section 42 deals with the power of entry, search, seizure and arrest without warrant or authorisation in respect of articles kept or concealed in any place, conveyance or enclosed place. In the present BA Nos.7177 & 7182 of 2022 7 case, there are two seizures, one from a moving scooter which was apprehended by the authorities and 5.5 kgs of ganja was seized. The second seizure was from a car which was parked in the car porch of the house of accused Nos.2 and 3 wherefrom 69.169 kgs of ganja and 52 grams of MDMA were seized. In respect of the second seizure the provisions of Section 42 is clearly applicable and going by Annexures-4 and 5 the provisions of Section 42 have been strictly complied with. 7. The next question to be considered is whether the provisions of Section 42 are to be complied with when the seizure is made from a scooter. Section 43 of the NDPS Act provides for the procedure and power of seizure and arrest in a public place and it deals with seizure of a narcotic drug or psychotropic substance or controlled substance in any place or in transit. In _**Boota Singh**_ 's case supra relied on by the learned counsel for the petitioner admittedly the seizure was from a vehicle which was parked in the road side and and they were selling poppy straw in the said vehicle and therefore a private vehicle will not come within the expression of public place as explained in Section 43 of the NDPS Act and therefore provisions of Section 42 are applicable. In the present 5.5 kgs of ganja was seized from a scooter while the same was in transit along with the contraband which was apprehended by the excise authorities and BA Nos.7177 & 7182 of 2022 8 alleged seizure was made. Therefore, it can only be treated as a seizure while the vehicle was in transit and therefore only the provisions of Section 43 will applicable to the facts of the case. 8. Learned Public Prosecutor relying on the decision in _**State of Haryana v. Jarnail Singh, 2004 KHC 710**_ submitted that since the vehicle was in transit on a public road when it was stopped and searched, only Section 43 of the NDPS Act will apply in the facts of this case and therefore when the alleged search and seizure is one coming under the provisions of Section 43, the officer making the search is not required to record his satisfaction as contemplated in the proviso to Section 43 of the NDPS Act for searching the vehicle between sunset and sunrise. The said view is reiterated by the _**Punjab and Haryana High Court in Mandeep Kaur v. State of Punjab (CRM-M-27760-2021 (O&M**_ ) and connected cases. In view of the same, prima facie I find that the contention of the learned counsel for the petitioner that there is no statutory compliance of Section 42 of the NDPS Act is only to be rejected. Eeven otherwise large quantity of contraband articles were seized from the car which was parked in the car porch of the house of accused Nos. 2 and 3. There is no contention taken that there is any procedural violation in respect of the BA Nos.7177 & 7182 of 2022 9 said search and seizure. In view of the above, I find no reason to grant bail to the petitioners at this stage. The bail applications are accordingly dismissed. Sd/- **VIJU ABRAHAM JUDGE** cks