Labeebul Mubarak v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940** **Bail Appl..No. 2839 of 2018** **------------------** **CRIME NO.20/2018 OF NADAKKAVU POLICE STATION, KOZHIKODE** ## **PETITIONER(S)/ACCUSED NO.2:** **LABEEBUL MUBARACK, S/O. ABDUL LATHEEF, AGED 23, MUBARACK MANZIL, CHERUKARA, OLAVANA POST, KOZHIKODE. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENT(S)/STATE:** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 018.** **2. SUB INSPECTOR OF POLICE NADAKKAVU POLICE STATION, KOZHIKODE DISTRICT - 673 004.** **BY PUBLIC PROSECUTOR MR. C.N.PRABHAKARAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RAJA VIJAYARAGHAVAN V., J** = = = = = = = = = = = = = = = = = = B.A. No. 2839 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of June, 2018 ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The applicant herein is the 2[nd] accused in Crime No.20 of 2018 of the Nadakkavu Police Station. In the said Crime, he along with the 1[st] accused are accused of having committed offence under Section 20(b)(ii)A and Section 22(c) r/w. Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution case is that the Sub Inspector of Police along with his party were on patrol duty on 5.1.2018. At about 1 p.m., they reached R.P. Mall, which is situated on the northern side of the Kozhikode - Mavoor road. In the parking ground of R.P.Mall, they found two persons sitting near to the compound wall and they were found engaged in packing some substance in small packets. On seeing the police personnel, they made an attempt to flee. They were immediately intercepted. The 1[st] accused was asked to what was in his pocket. He did not respond and he appeared perplexed. BA.No.2839/2018 **-:2:-** Immediately thereafter, the Sub Inspector is alleged to have conducted a body search. From the back pocket of the jeans, which was worn by the 1[st] accused, some cash, an ATM card, a brown packet containing some substance and 17 LSD Stamps were allegedly seized. Immediately thereafter, he ventured to search the applicant. From the back pocket of the jeans of the applicant, some cash, ID cards, three plastic covers containing some substance and an open packet containing some brown substance were seized. At about 2 p.m., their arrest was recorded in the presence of witnesses. The contraband was weighed using an electronic balance, which was available in the investigator's kit. From the 1[st] accused, the contraband seized was 0.210 gms of LSD and 8.8 gms of Hashish. The contraband seized from the applicant was weighed and it was found to be 2.890 gms of Hashish. The articles were sampled and sealed and a mahazar was also drawn up. Later the Crime was registered. 4. The learned counsel appearing for the applicant submitted that there are no reasonable grounds for believing that the applicant is guilty of the offence. According to the learned counsel, Section 50 of the Act has been blatantly violated. If the prosecution version is believed, the police officers had occasion to witness the 1[st] accused as well as the BA.No.2839/2018 ## **-:3:-** applicant packing the contraband in small covers. On seeing the police personnel, the applicant as well as the 1[st] accused had allegedly made attempts to flee from the spot. They were restrained and the body search of the 1[st] accused was initially conducted. This is in clear violation of Section 50 of the Act. The 1[st] accused was never informed of his right to be searched before a Gazetted Officer or a Magistrate. Without doing that a body search was conducted and LSD stamps were allegedly seized. It was thereafter that the body of the applicant was searched by the detecting officer and small quantity of Hashish was allegedly seized from his trouser pocket. According to the learned counsel, after having seized narcotic substances from the possession of the 1[st] accused and when the officer made up his mind to search the body of the applicant, he ought to have complied with Section 50 of the Act. The violation of the said provision would render the detection and seizure bad under law. Gross prejudice has been caused to the applicant is the submission. To bring home his point, the learned counsel has relied on the decisions of the Apex Court in **Sarija Banu Alias** **Janarthani Alias Janani and Another v. State Through Inspector of Police** [2004 (12) SCC 266], **State of Punjab v. Balbir Singh** [1994 (3) SCC 299], **State of Punjab v. Baldev** BA.No.2839/2018 ## **-:4:-** **Singh** [AIR 1999 SC 2378], **Vijaysinh Chandubha Jadeja v. State of Gujarat** [2011 (1) SCC 609] and **Karnail Singh v. State of Haryana** [2009 (8) SCC 539]. According to the learned counsel, it would result in failure of justice to insist that an accused in custody must wait until such time that the trial of the case is taken up to satisfy the court that there are reasonable grounds for believing that he is not guilty of the offence provided the necessary materials existed for the court to record such a satisfaction. According to the learned counsel, when the undisputed records produced by the prosecution shows that the procedural formalities have been blatantly violated, the applicant cannot be fastened with the unlawful possession and this was enough to make out a case that there were reasonable grounds for believing within the meaning of Section 37 of the NDPS Act that the applicant was not guilty of the offence. 5. Heard the learned Public Prosecutor, who has opposed the prayer. It is submitted that unless the applicant satisfy the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any BA.No.2839/2018 **-:5:-** offence while on bail, the applicant cannot be released. The learned Public Prosecutor has highlighted the deleterious effects and deadly impact of LSD and it was submitted that stringent provisions were incorporated in the Statute Book to deal with drug traffickers such as the applicant. Much reliance was placed on the decision of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari** [(2007) 7 SCC 798] to support his contentions. It was also submitted that the question whether or not the safeguards provided in Section 50 were observed would have to be determined by the trial 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 only for recording of an order of conviction or acquittal. The learned Public Prosecutor has also relied on the decision of the Apex Court in **SUPDT., Narcotics Control Bureau, Chennai v. R. Paulsamy** [200 (9) SCC 549]. 6. I have considered the submissions advanced and have scrutinised the case diary. 7. The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where there are reasonable BA.No.2839/2018 ## **-:6:-** grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds” which expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. (See **Union of India (UOI)** v. **Shri Shiv Shanker Kesari** [(2007) 7 SCC 798]. BA.No.2839/2018 ## **-:7:-** 8. The main contention advanced by the learned counsel is that the mandatory provision under Section 50 of the NDPS Act which lays down the condition under which search of persons shall be conducted has not been followed. Section 50 of the Act reads as follows: “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 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. BA.No.2839/2018 ## **-:8:-** (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 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 9. It is by now settled by the Apex Court that the obligation of the authorised officer under sub-section (1) of Section 50 of the Act is mandatory and requires strict compliance. In the case on hand, LSD Stamps were seized from the possession of the 1[st] accused. It was thereafter that a body search was conducted on the applicant and about 2.890 gms of Hashish were seized. As rightly held by the learned counsel, BA.No.2839/2018 ## **-:9:-** even if it is held that insofar as the 1[st] accused is concerned, it was case of chance seizure, the same cannot be said about the search conducted on the body of the applicant. The officer had occasion to seized narcotic drugs from the possession of the 1[st] accused. It was therefore 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 the Magistrate. This has been held to be so by the Apex Court in all the decisions cited above. It has been held that the obligation of the authorised officer under Sub Section (1) of Section 50 is mandatory and requires a strict compliance. The failure to comply with the provision would render the recovery of illicit article suspect. The right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the subject, viz., to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting false cases by the law enforcement agencies. 10. As rightly submitted by the learned Public Prosecutor, under Section 37 of the Act, no person accused of an offence punishable for offences involving commercial quantity can be released on bail only when the court is satisfied that there are reasonable grounds of believing that he is not guilty of the BA.No.2839/2018 ## **-:10:-** offence and that he is not likely to commit any offence while on bail. The power of this Court to release the applicant on bail is subject to the restrictions under Section 37 of the Act. However, in the instant case, when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached, it would be fallacious and pernicious to leave the question of their compliance to be looked into only at the stage of trial. In the instant case, the applicant has been in custody from 6.1.2018. Having gone through the materials, I am of the considered view that the non-compliance of the mandatory provisions under Section 50 would be sufficient, to vitiate a conviction for illegal possession of the contraband. The said non-compliance cannot be said to be a mere technical breach. I am of the view that it would result in failure of justice to force the applicant to be in custody till the trial is complete. The court's satisfaction within the meaning of Section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 248 of the Cr.P.C. Such a finding of guilty or not guilty can only be rendered after conclusion of the trial whereas the satisfaction that there are reasonable grounds for BA.No.2839/2018 ## **-:11:-** believing that the accused is not guilty as to be arrived at before the conclusion of trial, i.e., at any stage of investigation or in the course of trial itself. This Court cannot shirk from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction. As held in **Kesari** (supra), the expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds” which expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its BA.No.2839/2018 ## **-:12:-** satisfaction about the existence of such grounds. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. 11. Now the question is whether this Court will be justified in holding that the applicant is not likely to commit any offence while on bail. The prosecution has no case that the applicant is a person with criminal antecedents or that he has involved in similar offence earlier. He is a man aged 23 years. 12. Since the recovery has been made in contravention of mandatory provisions of Section 50 the applicant cannot be prima facie held responsible for unlawful possession of Hashish. For the limited purpose of consideration of this application, it is held that this Court is satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. I am of the view that the applicant can be enlarged on bail on stringent conditions. 13. In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties BA.No.2839/2018 ## **-:13:-** each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions: 1).The applicant shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for three months or till final report is filed, whichever is earlier. 2). The applicant shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. 3). The applicant shall not commit any offence while he is on bail. 4). The applicant shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. **Sd/-** Raja Vijayaraghavan V., Judge AD //true copy// P.A to Judge