Farhan A.K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 BAIL APPL. NO. 2152 OF 2022** ## **CRIME NO.8/2021 OF FEROK EXCISE RANGE OFFICE, KOZHIKODE** ## **PETITIONER/ACCUSED:** **FARHAN A.K AGED 23 YEARS RESIDING AT CHOLAMBADA PARAMBU, SARADHA MANDHIRAM BHAGOM, CHORUVANNUR AMSOM, KOZHIKODE DISTRICT, PIN - 673655 BY ADVS. ANOOP.V.NAIR RAMESH CHAND DEVI P. A.K.ANANDA KRISHNAN** ## **RESPONDENT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE EXCISE RANGE OFFICER EXCISE RANGE OFFICE, FEROKE, KOZHIKODE DISTRICT, PIN - 673631** ## **OTHER PRESENT:** ## **SR.PP - SRI. C.K.SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.2152 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A. No.2152 of 2022 .................................................................** Dated this the 20[th] day of July, 2022 ## **ORDER** This is an application for regular bail. 2. Petitioner is the 2[nd] accused in Crime No.8 of 2021 of Feroke Excise Range Office, Kozhikode alleging commission of offences punishable under Sections 22(c), 20(b)(ii)(B) read with Sections 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. Allegation against the petitioner is that on 19.03.2021 petitioner along with 1[st] accused was found carrying 310 grams of MDMA and 1.8 kg. ganja on a scooter bearing registration No.KL-11-BQ-3539. Petitioner has submitted that even though the contraband was seized suspecting it to be MDMA, but later in the chemical analysis report obtained from the Chemical Examiner's Laboratory Department, Kozhikode, the contraband was found to be methamphetamine. It is further submitted that the ganja seized is 1.8 kg. which is not of a commercial quantity. 4. Petitioner has a case based on Annexure-III seizure report that the investigating officer himself conducted the search and therefore there is BA No.2152 of 2022 3 clear violation of the provisions of Section 50 of the NDPS Act. Further contention of the petitioner is that he has not been informed about his right to be searched in the presence of a gazetted officer or a Magistrate, thereby violating the provisions of Section 50 of the NDPS Act. Petitioner relies on the judgments in **Arif Khan @ Agha Khan v. State of Uttarakhand (2018 KHC 6357), Vijaysinh Chandubha Jadeja v. State of Gujarat (2010 KHC 4832), Sanjeev and another v. State of Himachal Pradesh (2022 LiveLaw (SC) 267), Muhammed Ameen and another v. Narcotic Control Bureau, Cochin (2020(1) KHC 645)** and also **Shihab v. S.I. of Police, Kottakkal and another (2021 (5) KHC 491)** , to contend for the position that it is imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. Petitioner also relies on the judgment in **State of Rajasthan v. Parmanand and another (2014 KHC 4138)** to contend for the position that when the investigating officer himself conducted the search, there is violation of Section 50 of the NDPS Act. 5. Per contra, learned Public Prosecutor submitted that search has been conducted strictly in accordance with the provisions of Section 50 and that the petitioner has been given due notice of his right to be searched in the presence of a gazetted officer or a Magistrate. Learned Public Prosecutor relies on the judgment in **Sekhar Suman Verma v. Superintendent of N.C.B. and another (2016 KHC 6429), Sarwan Ram** BA No.2152 of 2022 4 **@ Sarwan Singh Ram and another v. State of West Bengal (2017 KHC 3288), Sipahi Kumar v. State of Kerala (2020 (2) KLT 655)** and **Arun v. State of Kerala (2021 (2) KLT 653).** 6. Let me examine the twin contentions raised by the counsel to contend that search conducted is bad in law and that the petitioner is entitled for bail. First contention is that he was not informed about his right to be searched in the presence of a gazetted officer or a Magistrate. The case diary was made available by the learned Senior Public Prosecutor for perusal of this Court. It clearly shows that a written notice was given intimating him about his right to be searched in the presence of a gazetted officer or a Magistrate to which the petitioner has given a written reply intimating that he should be searched in the presence of a gazetted officer. A perusal of Annexure-III complaint produced by the petitioner itself will show that such a notice was also produced before the court as is revealed from a reading of item 3 in Clause 10 of the said complaint. In view of the same, prima facie, I will have to accept the contentions raised by the Senior Public Prosecutor that the petitioner was intimated about his legal entitlement to be searched in the presence of a gazetted officer or a Magistrate. Therefore, the decisions relied on by the petitioner in **Arif Khan @ Agha Khan** 's case (supra) **, Vijaysinh Chandubha Jadeja** 's case (supra) **, Sanjeev** 's case (supra) **, Muhammed Ameen** 's case (supra) and also **Shihab** 's case (supra) can have no application in the facts and BA No.2152 of 2022 5 ## circumstances of this case. 7. The next contention raised by the petitioner is that the complainant or the investigating officer himself has conducted the search and therefore, the search is vitiated for having not satisfied the mandate of Section 50 of the NDPS Act. To substantiate his contentions, he relies on the judgment in **Parmanand** 's case (supra). Paragraph 15 of the said judgment reads as follows: _“15. We also notice that PW10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW5 J.S.Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW J.S.Negi by PW10 SI Qureshi. This, in our opinion, is again a breach of S.50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW5 J.S.Negi, the Superintendent, who was part of the raiding party. PW5 J.S.Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW5 J.S.Negi, the search would have been vitiated or not. But PW10 SI Qureshi could not have given a third option to the respondents when S.50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of S.50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW10 S.I.Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of S.50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed.”_ That was a case where the accused was informed that he has a right to be searched in the presence of a Magistrate or a gazetted officer or before a gazetted officer who was part of the raiding party. In the said circumstance, BA No.2152 of 2022 6 the court held that the investigating officer could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for the same. Admittedly, in the present case, a written intimation was given informing his right to be examined only in the presence of a gazetted officer or a Magistrate. 8. The contention that the investigating officer himself conducted the search was based on the wording in Annexure-III complaint which states that the search was conducted in _**“my**_ ” (investigating officer) presence, who is CW11 in the said complaint. To the abovesaid submission, the learned Public Prosecutor upon instructions submitted that the investigation was initially conducted by Sri.K.Satheesan, Excise Range Officer, Ferok and it is while on patrol duty that the petitioner was intercepted and questioned. Accused were informed that they have a right to be examined in the presence of a gazetted officer or a Magistrate and as the accused submitted that they need to be examined in the presence of a gazetted officer, the Assistant Excise Commissioner, Kozhikode Sri.M.Sugunan came to the scene and it is in his presence that the body search of the petitioner was conducted and thereupon the contraband was seized. It is thereafter the contraband articles were produced before the jurisdictional Magistrate. Subsequently, on 25.03.2021, the investigation of the crime was taken over by the Assistant Excise Commissioner, Thrissur, Sri.K.Premkrishna. Later Sri.M.Sugunan, who was the Circle Inspector of BA No.2152 of 2022 7 Police, Kozhikode and the gazetted officer before whom the search was conducted, was promoted as Assistant Excise Commissioner and on 12.07.2021 he took charge of the investigation and thereafter he filed the complaint before the concerned court. It is only in this context that it was mentioned in the complaint submitted before the court that search was conducted in his presence. But it is a fact that when the search was conducted, he was not the investigating officer and his presence was sought only in the role of a gazetted officer. It is long thereafter that he took charge of the investigation and finally filed the complaint before the designated court. 9. Learned Public Prosecutor also relied on the judgment in **Sarwan Ram @ Sarwan Singh Ram** 's case (supra) which held that while considering the application for bail even if the accused takes up a plea of violation of mandatory provisions relating to personal search, a mini trial however cannot be held at the early stages to decide actual breach of provisions relating to personal search and that the prosecution ought to have been given opportunity to establish its case at trial, even if case diary reveals prima facie breach of Section 50. Further contention of the learned Public Prosecutor is that this is a case of a chance recovery and the rigor of Section 50 is not applicable in such a case and he relies on the judgment in **State of Punjab v. Balbir Singh (1994 KHC 798)** and **State of Punjab v. Baldev Singh (1999 KHC 707)** to substantiate his contention. BA No.2152 of 2022 8 In view of the above decisions I am of the prima facie opinion that the violation complained of is not substantiated. In view of the above facts and circumstances, it is clear that the contention of the petitioner that the investigating officer himself conducted the search of the person of the petitioner is prima facie not acceptable. The Apex Court in **Sekhar Suman Verma** 's case (supra) has held that even if the gazetted officer was one who was accompanying the raiding party and examination was in the presence of a gazetted officer accompanying the raiding party, there is sufficient compliance of Section 50 of the NDPS Act. Therefore, prima facie I feel that the contention of the petitioner that there is non-compliance of the provisions under Section 50 of the NDPS Act is not legally sustainable. Even if the contraband seized was found to be not MDMA and only methamphetamine, taking into consideration the quantity of the contraband, ie. 310 grams, the same would come within the purview of commercial quantity inasmuch as 50 grams of methamphetamine is commercial quantity and therefore the rigor of Section 37 of the NDPS Act will come into play (see **Sipahi Kumar** 's case (supra) and **Arun** 's case (supra)). I do not find that sufficient materials have been submitted by the petitioner to get over the rigor of Section 37 of the NDPS Act so as to be released on bail. I do not find any reason to grant bail to the petitioner at this stage. Bail Application is accordingly dismissed. It is made clear that these prima facie BA No.2152 of 2022 9 observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits, during trial. Sd/- **VIJU ABRAHAM JUDGE** cks BA No.2152 of 2022 10 ## **APPENDIX OF BAIL APPL. 2152/2022** |**PETITIONER ANNEXURES**|| |---|---| |**Annexure1**|**TRUE COPY OF THE ORDER IN B.A. NO. 236 OF**| ||**2022 DATED 18.02.2022 PASSED BY THIS HON'BLE**| ||**COURT**| |**Annexure2**|**TRUE COPY OF THE CERTIFICATE OF CHEMICAL**| ||**ANALYSIS BEARING NO. 4168 OF 2021, ISSUED BY**| ||**THE ASSISTANT CHEMICAL EXAMINER, OF CHEMICAL**| ||**EXAMINER'S LABORATORY DEPARTMENT, DATED**| ||**25.08.2021**|