Muhammed Kasim v. State of Kerala and The Excise Inspector, Manjeri Excise Range, Malappuram District

**B.A No.82 of 2024** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945** **BAIL APPL. NO. 82 OF 2024** ## **CRIME NO.61/2023 OF Manjeri Excise Range Office, Malappuram** ## **PETITIONER/ACCUSED NO.1:** MUHAMMED KASIM, AGED 38 YEARS S/O.ABDUL GAFOOR, MUKKANNAN HOUSE, KAVANOOR, MALAPPURAM DISTRICT, PIN - 673639 BY ADV BABU S. NAIR ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 THE EXCISE INSPECTOR, MANJERI EXCISE RANGE,MALAPPURAM DISTRICT, PIN - 676121 ## **OTHER PRESENT:** SR.P.P.SMT.SEETHA.S. **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **24.01.2024, THE COURT ON 31.01.2024 PASSED THE FOLLOWING:** **B.A No.82 of 2024** 2 ## **C.S.DIAS,J** ## **====================== Bail Application No.82 of 2024 ----------------------------------Dated this the 31[st ] day of January, 2024** The petitioner, who is the first accused in Crime No.61/2023 of the Manjeri Excise Range Office, Malappuram, registered against him and two others for allegedly committing the offence punishable under Sections 22 (c) r/w Sec. 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act', for short), has filed this application under Section 439 of the Code of Criminal Procedure. The petitioner was arrested on 05.12.2023. 2. The essence of the prosecution case is that, around 12.05 hours on 5.12.2023, the Inspector in the 3 ## **B.A No.82 of 2024** Excise Intelligence and Investigation Bureau, Muhammed Shafeeque, Malappuram, went over to the office of the Shiju E.T, the Excise Inspector attached to Manjeri Excise Range and informed him that he had received an information that in a building attached to the poultry farm owned by the first accused, he and his friends namely Shameem and Sameer, the accused 2 and 3, were dealing with psychotropic substances. He requested the Excise Inspector to accompany him to conduct a search. The Excise Inspector recorded the said information, and the same was informed to his superiors, and two of them and their party proceeded to the place of occurrence. By around 1.30 a.m., they reached the place of occurrence and pushed open the building door. Then, they found the accused seated on a cot and filling some substance in plastic pouches. When the accused saw the Excise officials, they were perplexed and stood up. The Detecting Officer directed the accused to sit down, recorded their names, and directed them to hand over the plastic covers 4 ## **B.A No.82 of 2024** to him. From the detecting officer’s experience, he concluded that the substance was ‘MDMA’. Even though the accused were asked as to whether they needed the presence of a Gazetted Officer or a Magistrate to conduct their body search, they said it was not necessary. Yet, the Inspector of the Areacode Police Station was called to the spot, and the body search of the accused was conducted, but only mobile phones were recovered from their bodies. The contraband seized from the place of occurence was 52.492 grams of MDMA. At that time, the first accused confessed to storing the remaining contraband in his house. Accordingly, a search was conducted in the house of the first accused and another 93.074 grams of MDMA were seized. Thus, the accused have committed the above offence. 3. Heard; Sri. Babu.S.Nair, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor. **B.A No.82 of 2024** 5 4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of the mahazar and occurrence report would substantiate that there is a flagrant violation of the provisions of Sections 42 (1) & (2) and 50 of the Act. The non-compliance of mandatory provisions under the Act renders the entire search and seizure void. The materials on record reveal that the information was received by the Inspector of the Excise Intelligence and Investigation Bureau, an empowered officer. Therefore, there was no necessity for him to have gone to the office of the Excise Inspector and requested him to accompany him. This aspect proves the falsity of the crime. Moreover, the contraband was not seized from the accused in the presence of a Gazetted Officer, which is again in violation of the stipulations under the Act. He placed reliance on the decisions of the Hon'ble Supreme Court **State of Punjab v. Baldev Singh [** AIR 1999 SC **B.A No.82 of 2024** 6 2378] and **Sukhdev Singh v. State of Haryana** [2013 (2) SCC 212] to fortify his contention that, if a body search is conducted in the absence of a gazetted officer, the same is bad in the eyes of the law. He also contended that in **Basant Balram v. State of Kerala** [2019 (1) KLT 523] and **Muhammed Ameen v. Narcotic Control Bureau** [2020 (1) KHC 645], this Court has held that the question regarding violation of search and seizure of the contraband can be considered in a bail application. He further contended that the petitioner is a law-abiding citizen and is the sole breadwinner of his family. He has no criminal antecedents. The investigation in the case is complete, and recovery has been effected. The petitioner has been in judicial custody since 5.12.2023. The petitioner's continued detention is unnecessary. The petitioner is willing to abide by any condition that this court may impose. Hence, the application may be allowed. **B.A No.82 of 2024** 7 5. The learned Public Prosecutor strenuously opposed the application. She contended that there is no legal impediment in conducting a search through a joint operation, particularly when the Detecting Officer suspects that a huge quantity of contraband is involved, that the accused are hardcore criminals and there is a threat to the safety of the officer and party. That is why, the Inspector of the Excise Intelligence went over to the Excise Inspector's office and shared the secret information, and they decided to conduct a joint operation. Accordingly, they went to the spot and found the accused packing 52.492 grams of MDMA. At that time, they did not conduct a body search on the accused. However, based on the confession made by the first accused, they proceeded to his house and seized another 93.074 grams of MDMA, i.e., a total of 142.95 grams. The contraband was not taken from the body of the accused. It was only after the gazetted officer arrived at the spot, the body search of the accused was conducted. But only mobile phones were ## **B.A No.82 of 2024** 8 recovered from them. There is no violation of the provisions of the Act, as alleged. She placed reliance on the decisions of the Hon'ble Supreme Court in **Sajan Abraham v. State of Kerala** [2001 KHC 685] and **Union of India v. MD Nawaz Khan** [2021KHC 6503] and the decision of this Court in **Abeesh v. State of Kerala** [2022:KER:50902] to support her submission that the compliance of Sections 42 and 50 of the Act need not be looked into while considering a bail application; instead, it is a question to be considered at the time of trial. She contended that since commercial quantity of contraband has been seized from the accused, the rigour under Section 37 of the Act applies to the facts of the case. Hence, the bail application may be dismissed. 6. The Investigating Officer has filed a bail objection report, objecting to the petitioner being released on bail. It is, inter alia, stated that, in the joint inspection that was conducted by the two teams, they found the **B.A No.82 of 2024** 9 accused in possession of a commercial quantity of 142.955 grams of MDMA. The investigation is only at its preliminary stage. It is reliably learnt that the contraband was sourced from Bangalore in the vehicle belonging to the first accused. The financial source to purchase the contraband, the communications between the accused and source of supply are under investigation. The chemical analysis report is also awaited. Therefore, the application may be dismissed. 7. The prosecution allegation is that the detecting officer and party had seized a total of 142.95 grams of MDMA from the accused Nos.1 to 3, which is of a commercial quantity. 8. The pivotal contention of the counsel for the petitioner is that when the Inspector of the Excise Intelligence was a competent officer, there was no necessity for him to have conducted a joint inspection, the information was not reduced to writing and forwarded to **B.A No.82 of 2024** 10 the superior officer and the body search was conducted in the absence of a Gazetted Officer. Therefore, the entire search and seizure are void, entitling the petitioner to be released on bail. The said contention was countered by the learned Public Prosecutor, who argued that there is no prohibition under the Act in conducting a joint operation, the information was recorded and sent to the superior officer, and the contraband was seized from the premises where the accused was seated and not from their bodies. Therefore, there is no violation of the provisions of the Act. The above contentions are disputed questions, which is decided after trial. 9. In **Md Nawaz Khan’s case** , the Hon'ble Supreme Court, after considering the earlier precedents on the point, has held thus: > “28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana.” **B.A No.82 of 2024** 11 ## 10. The above view has been followed by this Court in **Abeesh's** case in the following lines: “8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham’s case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan’s case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act.” 11. In the light of exposition of law in **Md Nawaz Khan's** case and **Abeesh's** case, which I fully concur, I **B.A No.82 of 2024** 12 am of the firm view that the question raised by the counsel for the petitioner and countered by the Public Prosecutor is a matter than can only be decided after the conclusion of trial and not at this nascent stage. 12. It is to be remembered that, the contraband allegedly seized from the accused is of a commercial quantity and, therefore, the rigour of Section 37 applies to the facts of the case. 13. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is apposite to reproduce Section 37, which reads as follows: “37. **Offences to be cognizable and non-bailable** .—(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and **B.A No.82 of 2024** 13 (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 14. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 15. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable **B.A No.82 of 2024** 14 ## Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The 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”. ## 16. **Md. Nawaz Khan's** case, the Honourable ## Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. ## 17. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. **B.A No.82 of 2024** 15 ## 18. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 19. On an anxious consideration of the materials placed on record, the rival submissions made across the Bar, and the ratio decidendi in **Md Nawaz Khan’s** and **Abeesh's** cases, I am of the firm view that, the question whether the search and seizure were conducted in 16 ## **B.A No.82 of 2024** accordance with provisions of the Act is a matter of evidence and not a matter to be determined in the bail application. At any rate, taking into account the nature, seriousness and gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, that the investigation in the case is in progress, the potential severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction, I do not find any reasonable ground to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence if he is enlarged on bail. Hence, I hold that the rigour under Section 37 of the Act applies to the facts of the case. Therefore, I am not inclined to enlarge the petitioner on bail. ## Resultantly, the application is dismissed. **Sd/- C.S.DIAS, JUDGE** ma/26.01.2023 **B.A No.82 of 2024** 17 ## **APPENDIX OF BAIL APPL. 82/2024** PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE SEIZURE MAHAZAR PREPARED BY THE 2ND RESPONDENT DATED, 5-12-2023, 2.40 A.M. Annexure B A TRUE COPY OF THE SEIZURE MAHAZAR PREPARED BY THE 2ND RESPONDENT DATED, 5-12-2023, 3.45 A.M. Annexure C A TRUE COPY OF THE OCCURRENCE REPORT IN CRIME NO.61/2023 OF THE MANJERI EXCISE RANGE DATED, 5-12-2023