Riyas v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ``` BAIL APPL. NO. 3866 OF 2023 ``` ``` CRIME NO.747/2022 OF BEKAL POLICE STATION, KASARAGOD DISTRICT ``` ## **`PETITIONER/ACCUSED:`** ``` RIYAS AGED 25 YEARS, S/O. MUHAMMED KUNHI, BISMILLA MANZIL, KARUVALAM, PADANNAKKAD, KANHANGAD VILLAGE, KASARAGOD, PIN - 671314 ``` ``` BY ADVS. SAM ISAAC POTHIYIL S.SURAJA(K/460/2015) NEETHU SATHEESH(K/336/2015) MUHAMMED SUHAIR C.A(K/000535/2020) KARAN MATHEW(K/00373/2021) RAMU SUBHASH(K/2497/2022) JOHNSON M.M.(K/001933/2023) SANOJ M.A.(K/2329/2023) HARITHA S.(K/002194/2023) ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** ``` 2STATION HOUSE OFFICER BEKAL POLICE STATION, KASARAGOD, PIN - 671318 BY ADV PUBLIC PROSECUTOR SR PP - K DENNY DEVASSY ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.No. 3866 of 2023 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 13[th] day of November, 2023** This is the 2[nd] bail application filed by the sole accused in Crime No.747 of 2022 of Devikulam Police Sation under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the relevant documents. 3. The petitioner had filed an earlier bail application vide B.A. No.939 of 2023. This Court dismissed the same as per order dated 08.03.2023 and the order is as under: “This is an application for regular bail, filed by the sole accused in Crime No.747/2022 of Bakel Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents. 4. The prosecution case is that, on the basis of a reliable information, search was conducted at Room No.301 of Sreego Resort near Bakel Fort, doubting possession of Narcotic Drugs and Psychotropic Substances, by the accused. On search, 25.33 gm of MDMA and 6.380 gm of Hashish Oil, were recovered from the bag kept at the room of the accused. Subsequently, his body search ``` B.A.No. 3866 of 2023 ``` ``` 3 ``` was conducted and 49.430 gm of MDMA was recovered on body search. On this premise, crime, alleging commission of offences punishable under Sections 22(c) and 20(b)(ii) (A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter) was registered and the same is on investigation. 5. The learned counsel for the petitioner pointed out two anomalies in the matter of recovery alleged to be effected by the Investigating Officer. The first point argued is that, though the search was on the basis of prior information, the same is not properly recorded in writing, as mandated under Section 42(1) of the NDPS Act and mere General Diary entry is available in this regard. According to the learned counsel for the petitioner, General Diary entry is insufficient, to comply the mandate of Section 42(1) of the NDPS Act. Second point argued is that, in this case, body search also was conducted in relation to the petitioner, without complying Section 50 of the NDPS Act and therefore, the said search is vitiated. Accordingly, the learned counsel for the petitioner pressed for relief of regular bail, on the submission that Section 37 of the NDPS Act has no application, prima facie. 6. The learned Public Prosecutor opposed the first contention stating that, the prior information, received has been put it into writing by the Investigating Officer in the General Diary and Section 42(1) does not provide any specific form otherwise. Therefore, non compliance of Section 42(1) pointed out by the learned counsel for the petitioner, is of no avail. However, the learned Public Prosecutor also could not justify body search of the ``` B.A.No. 3866 of 2023 ``` ``` 4 ``` accused, since nothing stated in the recovery mahazar regarding compliance of Section 50. 7. While addressing two contentions raised by the learned counsel for the petitioner, the first point to be considered is as to whether there is non compliance of Section 42(1) of the NDPS Act. On perusing Section 42(1), an authorized officer referred in Section 42(1), if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or any psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed, can enter into and search any building, conveyance or place. Section 42(1) provides two situations. The first situation is the personal knowledge of the officer. The second situation is based on an information given by any other person. If the information is given by any other person, the same shall be taken down in writing. In the case at hand, the report of the Investigating Officer would go to show that he had recorded the information in General Diary, in writing, and based on the same, search was conducted. In fact, Section 42(1) does not provide the manner, in which, the information shall be taken down in writing. If so, if an information of such nature taken down in writing in the General Diary before proceeding for search, to be held as compliance of Section 42(1) and it is not safe to hold that, an information taken down in writing in the General Diary, shall not suffice compliance of Section 42. Therefore, this challenge cannot be sustained. 8. Regarding the second point urged by the learned ``` B.A.No. 3866 of 2023 ``` ``` 5 ``` counsel for the petitioner that non compliance of Section 50 of the NDPS Act would vitiate the recovery, since the prosecution records do not suggest compliance of Section 50, in any way, the said contention can be raised before the trial court during evidence. However, it is relevant to note that sub section (5) of Section 50 provides that, when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). Similarly, sub section (6) of Section 50 provides that, after a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 9. Therefore, by resorting to the mandate of sub sections (5) and (6) of Section 50 also, search is permitted in the absence of Gazetted Officer or Magistrate, subject to the conditions stipulated in sub sections (5) and (6). However, the available prosecution records do not suggest that the body search in the instant case, was by following the mandate under sub sections (5) and (6) of the NDPS Act. The said aspect also left open to be considered by the trial court. ``` B.A.No. 3866 of 2023 ``` ``` 6 ``` 10. Now, the question is; merely because Section 50 was not complied, while conducting body search of the petitioner, the recovery effected in relation to the contraband found to be possessed by him at his room, in a bag, for which, compliance of Section 50 is not mandatory, also to be disbelieved so as to dilute the rigor under Section 37 of the NDPS Act. 11. It is settled law that compliance of Section 50 is not mandatory in relation to search other than body search. If so, non compliance of Section 50 will not vitiate the recovery otherwise effected by the Investigating Officer in this crime. In view of the matter, merely because there is violation of the stipulations contained in Section 50, while conducting body search, the same shall not absolve the criminal culpability of the accused with regard to the contraband seized otherwise, for which, compliance of Section 50 is not mandatory. Here, commercial quantity of contraband was seized from the accused from the bag kept at his room, therefore, grant of bail in this case is interdicted by the special provision under Section 37 of the NDPS Act. In this case, recovery of commercial quantity of contraband is well made out excluding the recovery based on body search and therefore, recovery of commercial contraband from the possession of the accused is well established, prima facie. 12. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: 37. Offences to be cognizable and non- ``` B.A.No. 3866 of 2023 ``` ``` 7 ``` ## bailable.-- - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 27A 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 - (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 subsection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 13. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after ``` B.A.No. 3866 of 2023 ``` ``` 8 ``` satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail. 14. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, **Union of India v. Shiv Shankar Kesari** and held that the expression ‘reasonable grounds’ 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. 15. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 16. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in **Superintendent, Narcotics Central Bureau v. R.Paulsamy** [2000 KHC 1549: AIR ``` B.A.No. 3866 of 2023 ``` ``` 9 ``` 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], **Customs, New Delhi v. Ahmadalieva Nodira** [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], **Union of India v. Abdulla** [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], **N.R.Mon v. Md.Nasimuddin** [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], **Union of India v. Rattan Malik** [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], **Union of India v. Niyazuddin** [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], **State of Kerala v. Rajesh** [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is one reported in [2023 Crl.L.J.799], **Union of India v. Jitendra Giri.** 17. On a plain reading of Section 37(1) (b) and 37(1) (b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court ``` B.A.No. 3866 of 2023 ``` ``` 10 ``` could not grant bail without recording satisfaction of the above twin ingredients. 18. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. 19. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed.” 4. Now the learned counsel for the petitioner submits that, since the petitioner is a first time offender and has been in custody for the last 401 days, he is liable to be released on bail, following the ratio in **Fasil v. State of Kerala** [2023 (3) KHC 212]. 5. As per the report dated 24.07.2023, the learned Special Judge reported that the trial in S.C. No.222 of 2023 pertaining to Crime No.747/2022 can be expedited within a period of five months from the date of receipt of chemical analysis report. 6. As of now, the learned Public Prosecutor submitted ``` B.A.No. 3866 of 2023 ``` ``` 11 ``` that the chemical analysis report has been filed before the trial court. 7. In order to apply the ratio in **Fasil** ’s case (supra), the condition dealt therein as extracted hereunder are liable to be satisfied. The conditions are as under: “10. Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a pretty long time, at least more than one year, (say for eg. two years and 15 days in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated ``` B.A.No. 3866 of 2023 ``` ``` 12 ``` herein above, for diluting the rigour under Section 37 of the NDPS Act.” 8. Since, the learned Special Judge expressed willingness to dispose of S.C. No.222 of 2023 within a period of five months, there is no reason to hold that there shall be no possibility of trial within a period of six months. Therefore, the ratio laid down in **Fasil** ’s case (supra) has no application in this case. 9. In the result, this bail application fails and is accordingly dismissed with direction to the Special Court to complete the trial of S.C. No.222 of 2023, within a period of five months from the date of receipt of copy of this order. Registry is directed to forward this order to the Special Court for information and compliance. ## **Sd/-** ## **A. BADHARUDEEN** ## **JUDGE** SK