Naufal v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 BAIL APPL. NO. 5526 OF 2022 AGAINST CRIME NO.155/2022 OF NADAPURAM POLICE STATION ``` ## **`APPLICANT/ACCUSED:`** ``` NAUFAL AGED 42 YEARS S/O. ANDHRU CHAMMATHIL HOUSE, VARIKKOLI P.O., NADAPURAM, PIN – 673504. ``` ``` BY ADVS. SRUTHY N. BHAT P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI RAHUL SUNIL SRUTHY K.K ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` BY ADVS. SRI.K.A. ANAS, PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` # **ALEXANDER THOMAS & SOPHY THOMAS, JJ.** **-------------------------------------------------------------------------** Bail Application No.5526 of 2022 _(against Crime No.155 of 2022 of Nadapuram Police Station, Kozhikode)_ **--------------------------------------------------------------------** Dated this the 22[nd] day of December, 2022 ## **O R D E R** ## **Alexander Thomas, J.** The afore captioned application has been filed under Sec.439 of the Cr.P.C., seeking regular bail, in regard to the involvement of the applicant/accused in crime No.155/2022 of Nadapuram Police Station (which has now led to Sessions Case, SC No.95/2022 on the file of the NDPS Special Court, Vadakara, Kozhikode), wherein the accused has been arrayed as accused for offences punishable under Secs.22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as ‘NDPS Act’ for short), Sec. 6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as ‘COTPA Act’ for short) and Sec.118(e) of the Kerala Police Act. Bail Application No.5526 of 2022 2 2. Heard Smt.Sruthy N. Bhat, learned counsel appearing for the applicant/sole accused and Sri.K.A. Anas, learned Public Prosecutor, appearing for the respondent-State of Kerala. 3. The gist of the prosecution allegation is that, on the basis of reliable information, the police had searched the house occupied by the accused, on 11.03.2022 at about 7.15 p.m. and thereby he was found in possession of two stamps of LSD, totally having a weight of 0.46 gms., 1125 packets of Hans and 1051 packets of COOL LIP (both the Hans and the COOL LIP are stated to be banned tobacco products) and thus, the accused has committed offences as per Sec.22(c) of the NDPS Act, Sec.6 of the COTPA Act & Sec.118(e) of the Kerala Police Act. The accused was arrested on 11.03.2022 and he was ordered to be remanded to judicial custody on 12.03.2022, by the orders of the learned Judicial First Class Magistrate, Vadakara, and he has been under remand since then. 4. The applicant sought regular bail under Sec.439 of the Cr.P.C., by filing Criminal Miscellaneous Petition No.311/2022 before the Special Judge (NDPS Act cases), Vadakara, which has been rejected as per order dated 17..06.2022. Being aggrieved thereby, the applicant has preferred the instant bail application before this Court. This case was posted before us by orders of the 3 Bail Application No.5526 of 2022 learned Single Judge, as another matter was referred to the Division Bench, for determination of a question of law. 5. The regular bail was rejected by the Special Court on the ground that the offence as per Sec.22(c) of the NDPS Act would attract the restrictive conditions imposed by Sec.37 of the NDPS Act, inasmuch as, the offence as per Sec.22(c) of the NDPS Act, is one in respect of a contraband of commercial quantity and hence, the sentence on convictions is 10 years and above. 6. The main contention urged by Smt. Sruthy Bhat, learned counsel is that, the alleged search and seizure was effected on the day in question at 7.25 p.m., which is admittedly after sunset and hence, the restrictive rigour contained in the second proviso to Sec.42(1) of the NDPS Act would apply. The operative portion of Sec.42(1) stipulates that the search in question may be conducted between sunrise and sunset. Whereas, the second proviso to Sec.42(1) would mandate that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. It is urged that no legally Bail Application No.5526 of 2022 4 acceptable grounds of belief has been recorded by the officer concerned, while effecting the search and seizure in the instant case, as what has been purportedly stated is merely mechanically recanting the relevant provisions of the second proviso to Sec.42(1), without stating the factual state of affairs, which justifies the grounds of belief, as envisaged in the second proviso. The learned counsel appearing for the applicant would place reliance on the decisions of the Apex Court in _**Sarija Banu @ Janarthani and Ors. v. State through Inspector of Police**_ [(2004) 12 SCC 266, para 7], _**Rajinder Singh v. State of Haryana**_ [(2011) 8 SCC 130, paras 10, 11, 12, etc.], in aid of her contention that the impugned criminal proceedings, based on such search and seizure, in violation of the mandate contained in the second proviso to Sec.42(1), is vitiated. On this basis, it is urged by the learned counsel appearing for the applicant that, in view of this grave illegality, the same would be a sufficient ground for getting over the restrictions envisaged in Sec.37 of the NDPS Act, eventhough the prime allegation pertains to the alleged possession of commercial quantity of a contraband, etc. . 7. Yet another contention urged by the counsel for the applicant is that, if the Call Data Records (CDR) of the investigating officer is called for, then it would reveal that he was not at all present 5 Bail Application No.5526 of 2022 in the premises of the petitioner at the time of the alleged search and seizure, etc. 8. The learned Public Prosecutor has submitted that on the facts of this case, the stipulation in the second proviso to Sec.42(1) has been satisfied and would point out that the second contention, based on the CDR, etc., is covered against the applicant, as per the dictum laid down by the Division Bench of this Court in _**Gokulraj v. State of Kerala**_ [(2021) SCC online Ker. 6714]. The learned Public Prosecutor has further submitted, by placing reliance on the dictum laid down in para 33 of the decision of the Apex Court in _**Union of India through Narcotics Control Bureau, Lucknow v. MD. Nawaz Khan**_ [(2021) 10 SCC 100], that such a plea should be taken up only at the time of trial. 9. Earlier, we had also directed the investigating agency to furnish instructions in this case to the learned Public Prosecutor. 10. Today, we are apprised that the learned Prosecutor has been instructed by the investigating officer concerned to submit before this Court that the subject contraband in this case was subjected to chemical analysis at the Regional Forensic Science Laboratory, Government of Kerala, Kannur, and the said chemical examination report has been made available by the Joint Director of Bail Application No.5526 of 2022 6 the Regional Forensic Science Laboratory, Kannur, to the special court concerned with a copy to the investigating officer, as per letter dated 19.12.2022 and the said chemical examination report would disclose that the result of the examination is that LSD or any other narcotic drug and psychotropic substance could not be detected in the material object in item S1 therein, etc. 11. In the light of the subsequent developments, there is no necessity for us to adjudicate on the legal contentions advanced by the applicant and there may not be any serious objection in the grant of bail to the applicant, since it is now certified by the Regional Forensic Science Laboratory, in their chemical examination report, that the alleged contraband does not contain any LSD or any other narcotic drug or psychotropic substance. 12. Further, on being queried, we are also apprised by the learned Public Prosecutor, on the basis of instructions of the investigating officer, that the applicant has no antecedents for involvement in any such similar offences on any previous occasion. 13. In view of these aspects of the matter, the applicant is entitled to succeed and he could be granted regular bail. Accordingly, it is ordered that the applicant shall be forthwith released on bail, subject to the following condition: Bail Application No.5526 of 2022 7 (i) the applicant shall execute a bond for Rs.50,000/(Rupees Fifty thousand only) and shall also furnish two solvent sureties for the like sum, both to the satisfaction of the Special Court (NDPS Act Cases), Vadakara, Kozhikode district. (ii) the applicant shall not commit any offence, while on bail. 14. No other conditions may be required, as we are told that the investigation has been completed and final report/charge sheet has also been filed by the investigating agency. With these observations and directions, the above regular bail application will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** Skk//22122022