Muhammed Asarudheen v. State of Kerala and Narcotics Control Bureau

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942** ## **Bail Appl.No.7752 OF 2020** **O.R. NO.04/2019 OF NARCOTICS CONTROL BUREAU, KOCHI , Ernakulam** ## **PETITIONER/S:** **MUHAMMED ASARUDHEEN, AGED 26 YEARS, S/O ABDUL RAHEEM KASIMKUNJU, THADATHARIKATHU HOUSE, NOORAMTHODU P.O, KUNTHALAMTHERU, ADIVARAM, KOZHIKODE DISTRICT – 673586.** **BY ADV. SRI.RENJITH B.MARAR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031. 2 THE INTELLIGENCE OFFICER NARCOTICS CONTROL BUREAU, SUB ZONE, COCHIN – 682037. R1 BY PUBLIC PROSECUTOR R2 BY ADV. SHRI.M.V.S.NAMPOOTHIRY** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON 14.01.2021 PASSED THE FOLLOWING:** _Bail Appl.No.7752 OF 2020_ 2 ## **O R D E R** ## **Dated this the 14th day of January 2021** The applicant is the 2[nd] accused in O.R.No.4/2019 of the Narcotics Control Bureau, Sub Zone, Kochi, for offences punishable under Sections 8(C), 22(C), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). 2. The earlier applications for bail filed by the accused under Section 439 of the Cr.P.C. as B.A.No.8431/2019, B.A.No.2891/2020, and B.A.No. 4540/2020 were dismissed by this Court in view of the embargo under Section 37(1)(b)(ii) of the NDPS Act. 3. The relentless effort of the applicant continues and he has approached this Court once again with the present application seeking bail. The two main grounds raised by the applicant reiterating his demand for bail. 4. The first ground is that there is a gross violation of Section 50 of the NDPS Act, since even _Bail Appl.No.7752 OF 2020_ 3 prior to the arrival of the officers of the NCB, recovery is affected by the officers of the CISF led by Shri Saroj Bhupendra R., Assistant Commandant. Subsequent to the arrival of the officers of the NCB, the very same officer was called upon to witness the search as a Gazetted Officer as contemplated under Section 50 of the NDPS Act. Hence, it has to be regarded that the search as contemplated under Section 50 of the NDPS Act was totally vitiated. 5. The second main ground raised by the applicant is that he has been implicated solely on the basis of a confession statement given by the 1[st] accused under Section 67 of the NDPS Act, which according to the latest decision of the Supreme Court in _**Thofan Singh v.**_ _**State of Tamil Nadu, 2020 SCC OnLine SC 882**_ , is totally unacceptable and inadmissible. 6. I would consider the objection regarding the non-compliance of Section 50 first. 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, _Bail Appl.No.7752 OF 2020_ 4 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. That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. 7. The consequence of allegations of recovery of contraband articles in breach of statutory safeguards in relation to offences under the 1985 Act has been laid down in the Constitution Bench judgment of the Supreme Court in the case of _**State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378**_ . In this decision it has been explained in paragraph 55: _Bail Appl.No.7752 OF 2020_ 5 _“On the basis of the reasoning and discussion above, the following conclusions arise:_ _(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;_ _(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;_ _(3) That a search made, by an empowered officer, or prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;_ _(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. 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_ _Bail Appl.No.7752 OF 2020_ 6 _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. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by S.50 at the trial, would render the trial unfair._ _(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of 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 Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial;_ _(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;_ _(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;_ _Bail Appl.No.7752 OF 2020_ 7 _(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act._ _(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, or prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;_ _(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case._ ” ## Supreme Court in the case of _**State of Himachal Pradesh**_ ## _**Vs. Pawan Kumar, AIR 2005 SC 2265**_ considered as to what would constitute personal search has been examined by thus: _“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_ _Bail Appl.No.7752 OF 2020_ 8 _understood in a broad commonsense 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 civilized 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 clothings". In a civilized 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 "person" would mean a human being with appropriate coverings and clothings and also footwear._ _10. 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 suit case, 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,_ _Bail Appl.No.7752 OF 2020_ 9 _shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act._ _11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free.”_ ## In _**Sarwan Ram alias Sarwan Singh Ram and Another v.**_ _**State of West Bengal, 2017 KHC 3288**_ also, the Apex Court held that a mini trail is not contemplated to _Bail Appl.No.7752 OF 2020_ 10 find a reasonable case against the applicant based on non-compliance of the mandatory provisions of Section 50 of the NDPS Act. 8. Irregularity of procedure may ultimately vitiate the proceeding and lead to acquittal. However, that is a matter to be decided on the basis of the evidence at the trial. In the instant case, contraband articles were seized from the baggage of the 1st accused when it was being screened by the officers of the CISF. They found something suspicious and sought an explanation. The 1st accused give an explanation that it was some powder used for the purpose of jewellery making. Getting suspicious that it was Narcotic drug, coming within the purview of the NDPS Act, the officers of the NCB were informed and they took over the investigation from there. 9. As regards applicability of Section 67 of the NDPS Act, what the Apex Court has held is that confession statement cannot be relied upon for the purpose of conviction as the officers detecting an offence under the NDPS Act are to be considered as _Bail Appl.No.7752 OF 2020_ 11 Police officers and hence, statements recorded by them would come within the prohibition of Section 25 of the Evidence Act. Section 67 has been struck off the statute book. Such confession statements can definitely be used as corroborative piece of evidence, provided that there are other materials available. For that also, the prosecution must be given an opportunity to go for trial. **==> picture [432 x 12] intentionally omitted <==** arguments raised by the learned Counsel for the applicant are not sustainable to throw the case of the prosecution overboard at the threshold and grant bail to the applicant. 11. The application for bail filed by the applicant fails again. Since the final report has already been filed, the jurisdictional Court is directed to expedite trial. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** _dkr_