DEVADEVAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 BAIL APPL. NO. 6101 OF 2021** **AGAINST THE ORDER IN CRMC 1509/2021 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO. 867 OF 2021 OF KALAMASSERY POLICE STATION PETITIONER/ACCUSED NO.1:** DEVADEVAN, AGED 20 YEARS S/O. LATE FIROZ KUMAR, MANAMKOTTU HOUSE, VALIYAPARAMB, KURIVILASSERY POST, MALA, THRISSUR, NOW RESIDING AT B-6, VB CREST APARTMENT, ST.MARTIN ROAD, PALARIVATTOM, ERNAKULAM BY ADVS. NAVANEETH.N.NATH C.P.UDAYABHANU ABHISHEK M. KUNNATHU RASSAL JANARDHANAN A. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE S.I OF POLICE (CRIME 867/21), KALAMASSERY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31 BY ADVS. ADDL.DIRECTOR GENERAL OF PROSECUTION SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR ## **OTHER PRESENT:** K.A.ANAS- P.P THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON 03.09.2021 PASSED THE FOLLOWING: B.A.6101/2021 2 ## **ORDER** ## **DATED THIS THE 3RD DAY OF SEPTEMBER, 2021** The petitioner, who is undergoing incarceration in connection with Crime No. 867 of 2021 of Kalamassery Police Station registered for the offences punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') has moved this application under Section 439 of the Code of Criminal Procedure with the request to enlarge him on bail. 2. The brief facts as revealed from the records are as follows: 3. On 30.06.2021 at about 5 p.m., the Sub Inspector of Police of Kalamassery Police Station and his team while on patrol duty, were proceeding in their jeep through EdappallyAluva road, noticed a motor cycle advancing towards the same direction without exhibiting the number plate on the rear side of the vehicle. On suspicion, the motor cycle was intercepted by the police team and then the rider stopped the motor cycle and B.A.6101/2021 3 on seeing the police party, he fled away from the scene. The police team chased him and caught hold of him when he reached in the compound of Skoda Service Centre. When he was questioned, he was found perplexed and concealing something in his hand by keeping the same in the pocket of his jeans. When he was questioned repeatedly, he disclosed that he was having narcotic drugs in his possession and it was found that he was keeping a polythene cover and some white colored powder in a polythene cover. On questioning, he disclosed that the article was narcotic drug and it was MDMA kept for sale. He also disclosed his name and address to the S.I. Though the Sub Inspector informed him about the right to demand to conduct search in the presence of a Gazetted Officer so as to seize the narcotic drug he kept silent and he had not chosen to demand. Still the S.I procured the presence of a Gazetted Officer and seized the contraband after complying with the formalities under Section 50 of the NDPS Act and the petitioner was apprehended as he was found in possession of commercial quantity of narcotic B.A.6101/2021 4 drugs. Thus the case has been registered under Section 22(c) of the NDPS Act. 4. According to the learned counsel for the petitioner, the petitioner is totally innocent of the allegations leveled against him. In fact the 2[nd] accused who is a friend of this petitioner was under quarantine and he had entrusted this petitioner to receive a packet addressed to him from the parcel office and as entrusted by him the same was collected by him and on his way to the residence of the 2[nd] accused, he was apprehended by the police. In fact, he has no idea about the contents in the packet and without knowing that it was a contraband article, as entrusted by his friend, he had collected it as he was undergoing quarantine. So, he is totally innocent of the allegations leveled against him. Learned counsel has also pointed out that the provisions of Section 50 of the NDPS Act has not been complied with while conducting seizure of the alleged article from the possession of the petitioner and on that ground also he is entitled to be enlarged on bail. B.A.6101/2021 5 5. But, the said contention has been vehemently refuted by the learned Public Prosecutor and it is contended that commercial quantity of narcotic drug was detected from the petitioner, and it was only a chance recovery. So also, the rigor under Section 37 of the NDPS Act is also there and therefore the petitioner is not entitled to be released on bail. 6. A definite contention was raised by the learned counsel for the petitioner that the provisions under Section 50 of the NDPS Act has not been complied with and as there is violation of the statutory requirements in effecting the seizure and preparation of the mahazar by the detecting officer, the case is vitiated and he is liable to be released forthwith. 7. As the learned counsel has contended that the contraband was seized by the officer without complying with the statutory formalities prescribed under Section 50, it is apposite to reiterate the said provision. “ **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 B.A.6101/2021 6 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). (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. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which B.A.6101/2021 7 necessitated such search and within a severy-two hours send a copy thereof to his immediate official superior." 8. Here, it is pertinent to note that the police officers had conducted search on the body of the petitioner not on getting any reliable and secret information from any outside source, but by chance, while they were on petrol duty, this petitioner was apprehended by the police team. In **State of Punjab v. Baldev Singh** (1999 KHC 707) it has been held that Section 50 of the NDPS Act is not attracted where without prior information or during investigation contraband article is recovered. “12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. B.A.6101/2021 8 ## Further it was held in paragraph 14 as under: “14.The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder........." In paragraph 20 it was held as under: “20. In State of Punjab v. Labh singh, (1996(5) SCC 520) again it was reiterated that the accused has been provided with a protection of being informed of his right to be searched in presence of a Gazetted Officer or a Magistrate and failure to give an opportunity to the concerned person to avail of the protection would render the prosecution case unsustainable.” In paragraph 28 it was held as follows: “28......As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend creditibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an B.A.6101/2021 9 insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed 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 judicial process may come under 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 law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. “ ## In paragraph 33 it was held as follows: “33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the 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 Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial." B.A.6101/2021 10 9. Based on the legal proposition of law laid down by the Honourable Supreme Court, it could be seen that here, the detention and seizure were not on getting prior information but the petitioner was examined only on suspicion that too when he tried to flee away from the spot and so the argument of the learned counsel that the statutory requirements under Section 50 of the NDPS Act have not been complied with is of no merits. More over the entire evidence has to be evaluated at the time of trial of the case, not at this stage of bail. 10. Moreover, as commercial quantity of drugs is involved, the rigor under Section 37 of the Act is also there. 11. In **State of Kerala v. Rajesh** (2020(1) KHC 557) in paragraph 20 and 21 it was held as follows: “20. The scheme of S. 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S. 439 of the Cr.PC, but is also subject to the limitation placed by S.37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin B.A.6101/2021 11 conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban of granting bail operates. 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of S.37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” For all these reasons, I conclude that this petitioner is not entitled to be bailed out at this stage, following the parameters laid down by the Apex Court regarding the release on bail of a person who is involved in dealing with commercial B.A.6101/2021 12 quantity of narcotic drugs. It is also to be noted that the investigation of the case is not complete and though the petitioner is aged only 20 years, and a first time offender, I am not inclined to take a lenient view for releasing him on bail at this stage. Hence, dismissed. Sd/- **SHIRCY V.** **JUDGE** sb