High Court of KeralaSingle Judge2021-05-28Dispositive order: Bail applications dismissed.

Bail Applications Nos. 2556 of 2021 and 2766 of 2021 (Uma M. v. State of Kerala; Shahabas.K v. State of Kerala) before the High Court of Kerala, Ernakulam

Case / Petition Number:BA 2556/2021 & 2766/2021

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ashok Menon
Judgment Date: 2021-05-28
Court Decision / Holding: The applications are dismissed.
Final Disposition: Dispositive order: Bail applications dismissed.

Parties to the Case

Appellants / Petitioners

Uma M
Shahabas.K

Respondents

State of Kerala
Circle Inspector of Excise, Excise Range Office, Thaliparamba, Kannur District

Legal Representation & Advocates

Counsels for Petitioners

• Biju Antony Aloor
• K.P. Prasanth
• Shafin Ahammed
• T.S. Krishnendu
• Archana Suresh
• Jinson Jacob

Counsels for Respondents

• Santhosh Peter
• V. Sreeja

Case Synopsis & Summary

Two regular bail petitions (BA 2556/2021 and BA 2766/2021) were heard together by Justice Ashok Menon in the High Court of Kerala, Ernakulam. Uma M, aged 24, and Shahabas.K, aged 24, are accused in Crime No. 1/2021 of the Taliparamba Excise Range Office under the NDPS Act for alleged possession and dealing of narcotic substances, including 1,750 grams of LSD, 53 grams of MDMA and 5.37 grams of hashish oil, seized from Sneha Inn Bar Hotel in January 2021. The prosecution contends the accused were actively involved in packing and distribution of the contraband, while the defense maintains innocence and argues non-compliance with mandatory safeguards under Section 50 of the NDPS Act by the detecting officer. The petitioners rely on State of Rajasthan v. Paramanand and other decisions, Basanth Balaram & Ano v. State of Kerala, and Muhammed Ameen & Ano v. NCB Cochin to argue that S.50 safeguards must be observed and decided only at trial, i.e., no mini-trial at bail. The State counters that the contraband amounts to a commercial quantity, triggering Section 37 and its mandatory twin conditions, justifying denial of bail. After considering the authorities, the court holds LSD and MDMA to be commercial quantities, concludes that the Section 37 conditions are not satisfied for bail, and dismisses the applications.

Provisions of Law Cited

Section 439 Cr.P.C.NDPS Act Sec. 20(b)(ii)(B)NDPS Act Sec. 22(c)NDPS Act Sec. 29NDPS Act Sec. 50NDPS Act Sec. 37

Legal Doctrines & Maxims

S.50 safeguards under the NDPS Act must be observed and determined at trial; mini-trial is not permissible at bail stage (as articulated in Baldev Singh and applied in related precedents)
Twin conditions under Section 37 are mandatory for confinement of bail decisions in NDPS cases
A pre-trial mini-trial cannot decide S.50 compliance; the prosecution must be afforded opportunity to establish its case at trial (Baldev Singh doctrine)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that the detecting officer did not properly comply with Section 50 of the NDPS Act and seek regular bail on the ground that the safeguards were not observed. They rely on State of Rajasthan v. Paramanand and other authorities (paramount on S.50) and on Kerala decisions Basanth Balaram & Ano v. State of Kerala and Muhammed Ameen & Ano v. NCB Cochin to argue that a mini-trial would be required at bail stage, which is impermissible.

Contentions of Respondents

The State submits that the seized drugs amount to a commercial quantity (LSD and MDMA) attracting Section 37, making the twin conditions mandatory and justifying denial of bail. It argues that the 50 safeguards need not be resolved at the bail stage and that the prosecution’s case merits denial of bail given the alleged involvement of the accused in dealing with contraband.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State of Rajasthan v. Paramānand and another	AIR 2014 SC 1384; 2014 KHC 4138	Positive	Cited to support the proposition that safeguards under S.50 must be observed and that a mini-trial cannot be conducted at the bail stage; compliance should be determined at trial.
Basanth Balaram & Ano v. State of Kerala	2019(1)KHC 667	Positive	Cited as authority regarding the interpretation of S.50 safeguards and the role of trial-based assessment in bail considerations.
Muhammed Ameen and Ano v. NCB Cochin	2020(1)KHC 645	Positive	Cited to bolster the position on Section 50 observance and bail context.
State of Punjab v. Baldev Singh	1999 KHC 707; 1999 (6) SCC 172	Positive	Constitution Bench ruling that safeguards in S.50 must be examined at trial; used to justify denial of bail where 50 safeguards are not proved at the bail stage.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 28[TH] DAY OF MAY 2021 / 7TH JYAISHTA, 1943** **BAIL APPL. NO. 2556 OF 2021** **CRIME NO.1/2021 OF TALIPARAMBA EXCISE RANGE OFFICE, KANNUR** ## **PETITIONER/S:** 0 UMA M AGED 24 YEARS D/O MANIKANDAN M, KADUCHIRA, PATTANCHERY AMSAM DESAM, CHITOOR TALUK, PALAKKAD DIST., PIN - 517001 BY ADVS. BIJU ANTONY ALOOR SRI.K.P.PRASANTH SHRI.SHAFIN AHAMMED SMT.T.S.KRISHNENDU SMT.ARCHANA SURESH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE CIRCLE INSPECTOR OF EXCISE EXCISE RANGE OFFICE, THALIPARAMBU, KANNUR DISTRICT., PIN - 670141 BY ADV PUBLIC PROSECUTOR SRI.SANTHOSH PETER/SMT.V.SREEJA-PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.05.2021, ALONG WITH Bail Appl..2766/2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING: BA 2556 & 2766/2021 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 28[TH] DAY OF MAY 2021 / 7TH JYAISHTA, 1943 BAIL APPL. NO. 2766 OF 2021** ## **CRIME NO.1/2021 OF TALIPARAMBA EXCISE RANGE OFFICE, KANNUR PETITIONER/S:** 0 SHAHABAS.K, AGED 24 YEARS S/O ABDUL NASAR, KUNNOTH VEEDU, CHERUKATTOOR AMSOM DESOM, MANANTHAVADI TALUK, WAYANAD DIST., PIN - 670645 BY ADVS. BIJU ANTONY ALOOR SRI.K.P.PRASANTH SHRI.SHAFIN AHAMMED SMT.ARCHANA SURESH SHRI.JINSON JACOB ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BA 2556 & 2766/2021 3 2 THE CIRCLE INSPECTOR OF EXCISE EXCISE RANGE OFFICE, THALIPARAMBU, KANNUR DISTRICT PIN-670141. BY ADV PUBLIC PROSECUTOR SRI.SANTHOSH PETER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.05.2021, ALONG WITH Bail Appl..2556/2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING: BA 2556 & 2766/2021 4 ## COMMON ORDER Dated, this the 28[th] day of May, 2021 [B.A. Nos. 2556 and 2766 of 2021] Applications for regular bail under section 439 Cr.P.C. 2. The applicants in B.A. 2766/2021 and B.A. 2556/2021 who are husband and wife, are accused 6 and 7, respectively, in Crime No. 01 of 2021 of Taliparamba Excise Range Office for having committed offences punishable under Sections 22(c) and 20(b)(ii)(B) read with section 29 of the Narcotic Drugs and Psychotropic Substances Act,1985('NDPS Act' for short). 3. The prosecution case, in brief, is that on 01.01.2021 at about 9:00AM, the Excise Range Inspector of the BA 2556 & 2766/2021 5 Taliparamba Range, following discreet information about certain persons engaged in use and sale of Narcotic drugs and Psychotropic substances in Sneha Inn Bar Hotel, conducted a search of some rooms of the Hotel with his party. Search resulted in recovery of 1750 grams of LSD, 53 grams of MDMA, and 5.37 grams of Hashish oil from the room. The accused were all involved in packing the contraband for the purpose of distribution and sale. All the accused were arrested and remanded to judicial custody. 4. The applicants state that they are innocent, and have nothing to do with the contraband seized. It is stated that the 7[th] accused is an employee in the beauty parlour situated in the Hotel, and has been falsely implicated. It is also stated that the BA 2556 & 2766/2021 6 detecting Officer did not comply with the mandatory provisions of Section 50 of the NDPS Act. 5. Heard Sri B.A.Aloor, appearing for the applicants, and Sri.Santhosh Peter, the Senior Public Prosecutor for the State. Records perused. 6. The learned counsel for the applicant, Sri Aloor strenously argues that the detecting officer has not properly complied the provisions of Section 50 of the NDPS Act. He relies on the decision of the Apex Court in State of Rajasthan v. Paramanand and another [2014 KHC 4138: AIR 2014 SC 1384] and the decisions of this Court in Basanth Balaram & Ano v. State of Kerala [2019(1)KHC 667] and Muhammed Ameen and Ano v. NCB Cochin [2020(1)KHC 645] to bolster BA 2556 & 2766/2021 7 his argument. 7. 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, and observed thus: “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.” BA 2556 & 2766/2021 8 A mini trial cannot be held while considering an application for bail to decide if the provisions of S.50 of NDPS Act have been infringed or not. 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. 8. Coming to the facts of this case, the applicants were allegedly involved actively in the dealing of the contraband seized. LSD and MDMA seized are of commercial quantity, attracting the rigour under section 37 of the NDPS Act. In view of the catena of decisions to the affect that the twin conditions BA 2556 & 2766/2021 9 under Section 37 are mandatory, the applicants are not entitled to bail. The applications are dismissed. Sd/- ASHOK MENON JUDGE jg