Niyas v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 ``` ``` BAIL APPL. NO. 9802 OF 2021 ``` ## **`AGAINST THE ORDER IN SC 734/2021 OF ADDITIONAL SESSIONS COURT-VI,`** ## **`THIRUVANANTHAPURAM`** **`Crime NO.13/2020` Excise Enforcement and Anti-Narcotic Special** ## **Squad, Thiruvananthapuram** ## **`PETITIONER/2nd ACCUSED:`** ``` NIYAS AGED 33 YEARS OCC: AGRICULTURE, S/O. ABDUL AZEEZ C., EETTIMOOTTIL VEEDU, KUMMANNOOR DESOM, IRAVAN VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. BIJU ANTONY ALOOR K.P.PRASANTH T.S.KRISHNENDU ARCHANA SURESH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` 1THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2THE ASSISTANT EXCISE COMMISSIONER EXCISE ENFORCEMENT AND ANTI - NARCOTICS SQUAD, THIRUVANANTHAPURAM. ``` ``` BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION ``` ``` SRI. ANAS K.A. (PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON 21.03.2022 DELIVERED THE FOLLOWING: ``` `BAIL APPL. NO. 9802 OF 2021` 2 ## **ORDER** This is an application for regular bail. 2. Petitioner is the 2[nd] accused in Crime No.13/2020 of Excise Enforcement and Anti-Narcotic Special Squad, Thiruvananthapuram, alleging commission of offences under Sections 8(c), 20(b)(ii)(c) r/w. 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act). 3. Gist of the prosecution case is that on receiving credible information that the petitioner along with the other accused in the case was transporting contraband articles, the Circle Inspector of Excise Enforcement and Anti-Narcotic Special Squad and his party proceeded to a spot on the Alamkode-Kilimanoor road, where it was found that the petitioner and the other accused were unloading some bags from a van bearing registration No.KL-43-D-7923 to a Mahindra Bolero jeep/van bearing No.KL 16 F-2824. The Circle Inspector of Excise Enforcement and Anti-Narcotic Special Squad intercepted the two vehicles bearing the aforesaid registration `BAIL APPL. NO. 9802 OF 2021` 3 numbers from the Vellamkoli junction on the Alamkode-Kilimanoor road and 101 kgs of ganja and 3 kg of hashish oil was recovered. 4. Learned counsel appearing for the petitioner would submit that the recovery in question is vitiated as there is no compliance with the provisions of Section 50 of the NDPS Act. It is submitted that there is no proper compliance with Section 42(1) of the NDPS Act as no warrant has been obtained for conducting a search of a private vehicle. It is submitted that the question of invoking the provisions of Section 29 of the NDPS Act does not arise as there is no allegation that any conspiracy was hatched by the petitioner along with the other accused in the case. It is submitted that the statements recorded under Section 67 of the NDPS Act have no evidentiary value and cannot be relied on to rope in the petitioner. Reference in this regard is made to the judgment of the Hon’ble Supreme Court in **Tofan Singh v. State of T.N., (2021) 4 SCC 1** . The judgments of the Hon’ble Supreme Court in **Boota Singh v. State of Haryana, 2021 SCC OnLine SC 324** and **Karnail Singh v. State of Haryana, (2009) 8 SCC 539** are referred, to contend that the violation of the provisions of Section 42 of the NDPS Act will vitiate the search and recovery. It is submitted that going by the judgment in **Boota Singh (supra)** , a private vehicle will not come with the expression ‘public place’ under Section 43 of the NDPS Act. It is submitted that there is not `BAIL APPL. NO. 9802 OF 2021` 4 even delayed compliance with Section 42 of the NDPS Act as contemplated by the decision of the Constitution Bench of the Supreme Court in **Karnail Singh (supra)** . Learned counsel appearing for the petitioner has also referred to the internal page No.132 of Annexure A1 (final report filed in Crime No.13/2020) to reiterate that the provisions of Section 42 have not been complied with. 5. Learned Public Prosecutor vehemently opposes the grant of bail. It is submitted that the argument that there was total non-compliance with the provisions of Section 42 of the NDPS Act is absolutely incorrect. It is submitted that on 07.10.2020, a piece of secret information was received regarding the transport of contraband by the petitioner along with the other accused and the said information was reduced into writing by the Circle Inspector of Excise. The information was also conveyed to the superior officer namely, the Assistant Commissioner of Excise, Thiruvananthapuram, on 07.10.2020 itself. It is submitted that this is clear compliance with the provisions of Section 42(1) and 42(2) of the NDPS Act. It is submitted that the decision of the Supreme Court in **Boota Singh (supra)** has no application to the facts of this case as that was a case where the Supreme Court had clearly come to the conclusion that there was complete failure to comply with the provisions of section 42 of the NDPS Act. It is submitted `BAIL APPL. NO. 9802 OF 2021` 5 that this is clear from Paragraphs 15-16 of that judgment where it is recorded as under:- **“15.** The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa3, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. **16.** It is an admitted position that there was total noncompliance of the requirements of Section 42 of the NDPS Act.” 6. The Learned Public prosecutor also submitted that the procedure under Section 50 of the Act was not applicable in this case. Since recovery was not from the body of the accused and though the provisions of Section 50 of the NDPS Act were not applicable, in fact the provision was complied with in full, is the submission. It is submitted that a report as contemplated by Section 57 of the NDPS Act was also sent to the Assistant Commissioner of Excise, Thiruvananthapuram, in time. It is submitted that the procedure under Sections 42, 50 and 57 of the NDPS Act have therefore been complied with by the authorities concerned. It is submitted that since the contraband recovered is `BAIL APPL. NO. 9802 OF 2021` 6 in commercial quantity, the provisions of Section 37 of the NDPS Act are applicable and the petitioner is not entitled to be released on bail unless the twin conditions of section 37 of the NDPS Act are satisfied. 7. I have considered the contentions raised. The contention of the learned counsel for the petitioner that the provisions of Section 42(1) and (2) of the NDPS Act had not been complied with in this case cannot be accepted. It cannot be disputed that the secret information received by the Circle Inspector of Excise has been recorded in writing as is evident from Annexure-A1 itself. The said information was also communicated to the superior officer of the detecting officer, namely, the Assistant Excise Commissioner, Thiruvananthapuram. Having gone through Annexure-A1 final report, I find no reason to hold that the provisions of Section 42 of the NDPS Act have not been complied with in this case. The contention of the learned counsel for the petitioner, relying on the judgment of the Hon’ble Supreme court in **Boota Singh (supra)** is that the vehicle from which the contraband was seized is a private vehicle and is not a public place and therefore, the provisions of Section 42 of the NDPS Act had to be mandatorily complied with. However, since I find, on facts, that provisions 42 of the NDPS Act have been complied with, the decision in **Boota Singh (supra)** does not come to the aid of the `BAIL APPL. NO. 9802 OF 2021` 7 petitioner. It is settled law that the provisions of Section 50 of the NDPS Act apply only in the cases where the search and recovery is from the body of the accused. Here, the recovery is admittedly from a vehicle and not from the body of the accused. Therefore, the question of any violation of Section 50 of the NDPS Act does not arise for consideration. The records also show that following arrest and seizure, the Circle Inspector of Excise had conveyed the details of such arrest and seizure to his immediate superior officer, namely, the Assistant Commissioner, Thiruvananthapuram. Therefore, I have no hesitation to hold that the contention of the learned counsel for the petitioner that there is a violation of the procedure contemplated by Sections 42, 50 and 57 of the NDPS Act is only to be rejected. 8. The drugs/contraband recovered from the petitioner and other accused is, admittedly, in commercial quantity. The provisions of Section 37 of the NDPS Act, therefore, apply in this case. The petitioner is not entitled to bail unless he can show that the twin conditions in Section 37 of the NDPS Act are satisfied. I have no reasonable grounds to believe that the petitioner is not guilty of the offences alleged against him. I also do not have any reason to believe that the petitioner will not indulge in similar activities if he is granted bail. These conditions are to be cumulatively satisfied. Even it is found that since no criminal `BAIL APPL. NO. 9802 OF 2021` 8 antecedents are reported against the petitioner, the second condition in Section 37 is satisfied, the first condition is not satisfied. Therefore the petitioner is not entitled to be released on bail. The Bail Application will stand dismissed. Sd/- GOPINATH P.,JUDGE ajt