Mohammed Zameer 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. 4866 OF 2022** **CRIME NO.15 OF 2021 OF KASARGODE EXCISE RANGE** ## **PETITIONER/ACCUSED:** **MOHAMMED ZAMEER AGED 39 YEARS, S/O.RIYASUDDIN R/AT KANA HOUSE, KUBANOOR VILLAGE, BEKUR POST, MANJESHWAR TALUK, KASARAGOD DISTRICT.** **BY ADV KODOTH SREEDHARAN** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 THE EXCISE INSPECTOR KASARAGOD EXCISE RANGE OFFICE , KASARAGOD- 671121** **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SR.PP - SMT. SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.4866 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A.No.4866 of 2022 .................................................................** Dated this the 20[th] day of July, 2022 ## **ORDER** This is an application for regular bail. 2. Petitioner is the accused in Crime No.15 of 2021 of Kasaragod Excise Range registered alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. The case of prosecution is that on 04.10.2021 at 11.45 a.m. the petitioner was found possessing and transporting 51 grams of MDMA in a motorcycle bearing registration No.KL-14 S 9246 near a bus waiting shed at Baikatta of Kayyar Village and thus committed the abovesaid offence. 4. Petitioner submitted that he was arrested on 04.10.2021. Petitioner submitted that he is totally innocent of the charges levelled against him. Petitioner produced Annexure-A2 seizure mahazar and contended that there is violation of Section 50 of the NDPS Act in the matter of search of the petitioner. 5. The learned Public Prosecutor relying on the seizure mahazar submitted that while excise party was on duty, they found a Bajaj pulsar motorcycle bearing registration No. KL-14 S 9246 turning to BA No.4866 of 2022 3 Paniyadukkam road and seeing the excise party the passenger, Muhammad Zameer was found perplexed and in the attempt to flee he lost balance and fell down on the road. The Excise Circle Inspector found that a small bag was loosely strapped to the wrist of the petitioner and he tried to hide the same. Under suspicion, the Circle Inspector took the bag from the petitioner and searched it and he found currency notes, two bundles of small polythene sachets, a plastic spoon and a glass bulb with a hole on its side and with its upper end drawn into an elongated tube. There was also a digital weighing balance inside the bag. Those sachets are used by the drug sellers for packing drugs for retail sale, and the glass bulb was an apparatus used by drug addicts and they use it to melt the drug and to inhale the resulting vapour and the small spoon they used for transferring drug to the sachets and that the small digital weighing balance is usually used by the drug sellers to measure out the drug for sale. The accused confessed that he had MDMA, which is a psychotropic substance, in his pants pocket. Thereupon the Circle Inspector decided to search the body of the accused and as stipulated in Section 50 of the NDPS Act and he apprised the accused of his right to be searched in the presence of a Magistrate or a gazetted officer. Thereafter, the Circle Inspector of Excise, Kasargod was summoned, who is an empowered gazetted officer to witness the body search. In his presence, the body of the accused was searched. In the search he received a plastic sachet containing white crystalline substance and the BA No.4866 of 2022 4 accused revealed that the same was MDMA. He measured the MDMA using the digital balance kept in the detection kit and found that it weighed 51 grams. It is further submitted that in the chemical analysis report of the sample of the seized contraband, it was revealed that the drug seized was actually not MDMA, but methamphetamine. As the quantity seized from the possession of the accused was 51 grams, which is sufficient to attract Section 22(c) of the NDPS Act as the contraband article was of a commercial quantity. The motorbike used by the accused was registered in the name of the petitioner’s elder brother, but on investigation it was found that the same was bought by the accused for his own use. So it could be seen that in the bag seized, materials used for sale and for consumption of narcotic drug were found and in the actual body search the narcotic drug was found and seized. The contention now raised by the counsel for the petitioner based on Annexure-A2 seizure mahazr is that the said search was not in accordance with Section 50 of the NDPS Act. Such contention is raised based on Annexure-A2 seizure mahazar mainly for the reason that the bag was searched by the investigating officer himself and therefore, the search was not in accordance with the provisions of Section 50 of the NDPS Act. But a further reading of the seizure mahazar would reveal that no contraband was seized from the bag in possession of the petitioner, but it is only in the body search that the contraband was found in the pants pocket of the petitioner. The same was done in the presence BA No.4866 of 2022 5 of Kasargod Excise Circle Inspector, Sri.Tony S. Issac, who is a gazetted officer. The contention raised by the petitioner is that while searching the bag in possession of the petitioner the provision of Section 50 of the NDPS Act was not followed and therefore search and seizure is illegal. Learned counsel for the petitioner relies on the judgment of this Court in **Basanth Balram and another v. State of Kerala, 2019 (1) KHC 667** to contend for the position that if there is violation of the mandate of Section 50, the accused is entitled to the benefit of the same. That was a case in which even going by the mahazar the accused therein was not granted an opportunity to demand that they were required to be searched in the presence of a Magistrate or a gazetted officer. It was further found by this Court in the said case that even though the notice was issued at 3.45 p.m., the arrest memo shows that both accused were arrested on 3.30 p.m. Such variations in the seizure mahazar was taken note of by the Court and found that seizure has been done in violation of Section 50 of NDPS Act. Such is not the position in the present case. Petitioner has no case that he was not informed of his right to be searched in the presence of a gazetted officer or a Magistrate before the search was conducted and in fact the search was conducted in the presence of a gazetted officer. The case of the petitioner is that the bag in his possession was searched not in the presence of a gazetted officer. The question for consideration is as to whether provisions of Section 50 of the Act have to be complied while searching the bag in the possession BA No.4866 of 2022 6 of the petitioner from which no contraband was seized. In **Madan Lal and another v. State of H.P., (2003) 7 SCC 465** , in paragraph 16 of the said judgment it was held as follows: _“16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. (see Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257; State of Punjab v. Baldev Singh (1999) 6 SCC 172 and Gurbax Singh v. State of Haryana (2001) 3 SCC 28.) The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding noncompliance with Section 50 of the Act is also without any substance.”_ ## The said position was reiterated by the Apex Court in **State of H.P. v. Pawan Kumar, 2005 KHC 860** , paragraphs 10 and 11 read as follows: _“10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be-- “ the body of a human being as presented to public view usually with its appropriate coverings and clothing”. In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word_ BA No.4866 of 2022 7 _"person" would mean a human being with appropriate coverings and clothings and also footwear._ _11. A bag, briefcase or any such article or container, etc can, under no circumstances, be treated as body of a human being They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in S 50 of the Act.”_ The issue was further considered by Apex Court in **State of Haryana v. Ranbir alias Rana, AIR 2006 SC 1796** and reiterated the position that provisions of Section 50 of NDPS Act will only be applicable in case of personal search of the accused. Subsequently the Apex Court in **Ajmer Singh v. State of Haryana, (2010) 3 SCC 746** held in paragraph 15 as follows: _“15. It appears from the evidence on record that the accused was confronted by ASI Maya Ram and other police officials on 24.1 1996 and he was informed that he has the right to either be searched before the Gazetted Officer or before a Magistrate and the accused chose the later. Thereafter, the accused was taken to the DSP, Pehowa, Shri Paramjit Singh Ahalawat and as directed by him, the bag carried by accused on his shoulder was searched and the charas was found in that bag. Thus, applying the interpretation of the word "search of person" as laid down by this court in the decision mentioned above, to facts of present case, it is clear that the compliance of S.50 of the Act is not required. Therefore, the search conducted by the investigation officer and the evidence collected thereby, is not illegal Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance of S.50 of the Act.”_ BA No.4866 of 2022 8 Considering the legal position as reiterated above, it is without any doubt that for the search of a bag in the possession of the petitioner, provision of Section 50 of NDPS Act is not applicable and in fact no contraband was seized from the bag. Further it is seen that the actual contraband was seized when the body search was conducted and on a careful consideration of contentions on both sides, I am prima facie satisfied that the search was conducted in accordance with Section 50 of the NDPS Act. 6. Yet another matter to be considered in this case on the basis of the contention taken by the learned Public Prosecutor is that in the present case detection of the contraband was made while conducting routine patrol duty and it is only a case of chance recovery and therefore the provisions of Section 50 has no application at all. The said issue was considered by the Apex Court in **State of Punjab v. Balbir Singh, 1994 KHC 798** and paragraph 26 (1) of the said decision reads as follows : _“26. The questions considered above arise frequently before the Trial Courts. Therefore we find it necessary to set out our conclusions which are as follows._ _(1) If a police officer without any prior information as contemplated under the Provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr PC and when such search is completed at that stage S.50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an_ BA No.4866 of 2022 9 _empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.”_ Similar issue was considered by a Larger Bench of the Apex Court in **State of Punjab v. Baldev Singh, 1999 KHC 707** , paragraph 12 of the said judgment reads as follows: _“12. On its plain reading, S.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 S.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 S.50 of the Act are not attracted.”_ So, in view of the above said categorical declaration of law, the objection raised by the learned Public Prosecutor has to be accepted. Moreover, in the present case even such a contention need not be considered _in extenso_ especially for the fact that the search of the person was conducted in the presence of a gazetted officer in compliance of Section 50 of NDPS Act. 7. Since the contraband involved is of a commercial quantity, to enlarge the petitioner on bail, the twin conditions mentioned in Section 37 of the NDPS Act are to be satisfied. Though, I have examined the contentions raised by the petitioner based on violation of the provisions of Section 50 of the NDPS Act, I am prima facie not able to accept the said contention for the reasons enumerated above. The petitioner is not able to substantiate any valid contentions to get over the rigor of Section 37 of the NDPS Act and bail application is accordingly dismissed. BA No.4866 of 2022 10 It is made clear that these prima facie 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