ROHIT v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941 Bail Appl..No. 2139 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 335/2019 of DISTRICT COURT & SESSIONS COURT,THRISSUR DATED 07-03-2019** **CRIME NO. 137/2019 OF AnthikadPolice Station , Thrissur** **PETITIONER/S:** **ROHIT, AGED 21 YEARS S/O. DHANAJAYAN, HARIDIVYAM, NJAGATTRI DESOM, NJAGATTIRI P.O, PATTAMBI TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.B.RAMAN PILLAI (SR.) SMT.MANJU E.R. SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT RESPONDENT/S: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== ## B.A.No. 2139 of 2019 ================== Dated this the 11[th] day of April, 2019 **O R D E R** This is an application for grant of regular bail filed under Sec. 439 of the Code of Criminal Procedure, 1973, by accused No.1 in Crime No. 137 of 2017 of Anthikkad Police Station. The abovesaid crime has been registered for offence punishable under Sec. 20(b)(ii) (C) of the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985. The petitioner has been arrested in relation to the above crime on 18.2.2019 and has been under judicial custody, since then. 2. Heard Sri.B.Raman Pillai, learned Senior Counsel instructed by Sri. R.Anil, learned counsel appearing for the petitioner (A-1) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State of Kerala. 3. The aforementioned Crime No.137/2019 of Antikkad Police Station has been registered on the allegation that in connection with the visit of the Hon'ble Chief Minister to the Kaippamangalam, Police Station limits, the Sub Inspector of Police, Anthikkad Police Station and others were in the task of inspecting vehicles in the area and in that connection they were on patrolling duty and that during B.A.No.2139/19 - : 3 :- such patrolling by the said Police officials in their Police jeep, they had found two persons standing in front of Jaya Backery on the northern side of Kanjani bus stand at around 2 a.m. in the early morning hours on 18.2.2019, each holding a bag and on enquiry, their names were revealed as Rohith, S/o.Dhanananjayan, petitioner herein (viz. A-1) and one Ahammed, S/o.Sharafudheen (accused No.2) and when the Sub Inspector informed his identity and told them that he wanted to search their bags as the said persons do not belong to that place and as they were found at odd hours, both of them had run away leaving the bags there, upon which they were apprehended using reasonable force and on opening the bags by the respective persons, brown as well as pale yellow cellophane tape wrapped packets were found stacked therein which emitted strong smell of ganja. Thereupon the Sub Inspector concerned had told them that he wanted to conduct search of that persons and informed of their right to have the said search conducted in the presence of a gazetted officer or a Magistrate, to which they requested the presence of a gazetted officer for the search and accordingly the Sub Inspector concerned had contacted a gazetted officer concerned and Inspector of Excise, Thrissur, Thrissur Range, who is a gazetted rank officer, had later made himself present for search on request of the Sub B.A.No.2139/19 - : 4 :- Inspector. That thereafter the said gazetted officer searched the bodies of the Sub Inspector of Police and the Police officials accompanying him in the presence of the witnesses and the accused persons. Thereafter, the Sub Inspector of Police had conducted search of the two accused persons and had recovered articles like mobile phone, black purse with an ATM card of SBI and some monies and on examining the violet trolley bag carried by the petitioner (A-1), contraband drugs (ganja) were recovered and thereafter, the petitioner (A-1) was arrested at 3 a.m. on 18.2.2019 on the reasonable belief that the said ganja was for sale to some one. That the body search of the other person (A-2 ) had also led to recovery of materials like brown purse with Rs. 100/-, a bank ATM Card, his AADHAR card and laminated copy of his duplicate driving licence and from the read coloured bag, he was found carrying packets of ganja, which were retrieved and A-2 was arrested at 3.20 a.m. on 18.2.2019, etc. and that ganja of about 42.2 kgs. was seized under a mahazar and after returning to the Police Station concerned with the seized articles, and the accused persons, the Sub Inspector had suo motu registered Crime No. 137/2019 of Anthikkad Police Station, for offence punishable under Sec. 20(b)(ii)(C) of the NDPS Act against the petitioner (A-1) and the other person (A-2) as per B.A.No.2139/19 - : 5 :- Anx. A FIR, etc. 4. The petitioner would mainly contend that the search effected on the accused persons, which led to the alleged retrieval of the contraband ganja drugs from them has been done in flagrant violation of the mandatory provisions contained in Sec. 50 of the NDPS Act, 1985, inasmuch a mere reading of Anx. A-4 notice said to have been issued by the Sub Inspector to the petitioner would clearly show that he was only informed of the option of search in the presence of a gazetted officer and that the crucial aspect that the accused is having a vested legal right under Sec. 50 of the NDPS Act to make such a demand for conduct search in the presence of the gazetted officer or Magistrate is conspicuously absent in the wordings of Anx. A-4 notice. Further it is pointed out that the time of arrest of the petitioner (A-1) as noted in Anx. A FIR, Anx. A-1 seizure mahazar and Anx. A5 remand report is 3.00 a.m. on 18.2.2019, whereas in Anx. A-3 the arrest memo it has been recorded that the arrest of the petitioner (A-1) was at 2 a.m. on 18.2.2019. In that regard, it is urged by the petitioner's counsel that since the crucial aspect regarding the legal right of the accused persons, which demands the conduct of the search in the presence of the gazetted officer of Magistrate as mandated in Sec. 50 of the NDPS Act is conspicuously missing in B.A.No.2139/19 - : 6 :- Anx. A-4 notice, the version in Anx. A FIR that such a legal right was explicitly apprised to the accused persons by the Sub Inspector concerned, etc. is nothing but false and factually wrong. It is on this basis that the petitioner that there is flagrant violation of the mandatory provisions contained in Sec. 50 of the NDPS Act. It is stated that the specific case of the prosecution as evident from Anx.A-1 seizure mahazar that the total quantity of the ganja so retrieved after the search of the accused persons is 42.2 kg. of ganja. Further that the weight of the alleged ganja articles recovered from the accused persons has not been shown in Anx. A FIR and that the weight of the alleged ganja articles retrieved as shown in Anx.A-1 seizure mahazar is based on falsification of facts. 5. Per contra, the learned Prosecutor has raised contentions to deny the correctness of the abovesaid allegations and grounds urged by the petitioner and would thus urge that the petitioner has miserably failed to satisfy the strict requirement of Sec. 37(1)(b) of the NDPS Act, wherein it has been mandated by the Parliament, that notwithstanding anything contained in the Cr.P.C., 1973, no person accused of an offence punishable for offences under Sec. 19 or Sec. 24 or Sec. 27A of the said Act and also for offences involving commercial quantity, shall be released on bail or on his own bond unless, the B.A.No.2139/19 - : 7 :- Public Prosecutor has been given an opportunity to oppose the application for such release, and 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. 6. A 3-Judge Bench of the Apex Court in the case in _**SK.Raju @ Abdul Haque @ Jagga v. State of West Bengal**_ [(2018) 9 SCC 708] has inter alia considered the effect of Sec. 50 and Sec. 20(b)(ii)(c) of the NDPS Act in regard to search and seizure in public place. In that case, besides the bag of the accused being searched, search of the person of the accused was also conducted, which resulted in recovery of cash from his trouser pocket and the contraband was recovered from the bag carried by the accused. The Apex Court has held in that case that as per Sec. 50(1), the empowered officer should necessarily inform the suspect about his legal right, if he so requires, to be searched in presence of a gazetted officer or a Magistrate and strict compliance of Sec. 50(1) by the empowered officer is mandatory and that Sec.50, however, applies only in case of search of a person. In the facts of that case, P.W-2 had conducted search of the bag of the appellant as well as of the appellant's spouse and therefore the search conducted by P.W-2 was B.A.No.2139/19 - : 8 :- not only of bag which the appellant was carrying but also of the appellant's person and since the search of person of the appellant was also involved, Sec. 50 would be attracted and hence the officer was required to comply with the requirements of Sec. 50(1) and that as soon as search of a person takes place, requirement of mandatory compliance with Sec.50 is attracted, irrespective of whether the contraband is recovered from the person of the detainee or not and that it was imperative for the officer to inform the appellant of his legal right to be searched in the presence of a gazetted officer or a Magistrate. 7. In that regard, it is also pertinent to note that the learned Prosecutor has specifically taken this Court's attention to paragraph 57(1) of the judgment of the Constitution Bench of the Apex Court in the celebrated case in _**State of Punjab v. Baldev Singh**_ [(1999) 6 SCC 172, p.208] wherein it was held by the Constitution Bench that 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 person concerned of his right under Sec. 50(1) of being taken to the nearest gazetted officer or the nearest Magistrate for making the search, but however information may not be necessarily be in writing. B.A.No.2139/19 - : 9 :- 8. After hearing both sides and after perusal of the prosecution records, including those at Anx. A FIR, Anx. A-1 seizure mahazar and Anx. A5 remand report, it is seen that the Sub Inspector of Police concerned has specifically apprised the accused persons that immediately on getting strong smell of ganja when the accused persons had unzipped the bag, the Sub Inspector of Police concerned had specifically and explicitly apprised both the accused persons of their legal right to have the search conducted in the presence of a gazetted officer or Magistrate and that thereupon the accused persons had demanded that the search be conducted in the presence of a gazetted officer and thereupon the Sub Inspector had contacted through his mobile phone one gazetted officer, who informed that the area concerned was not within his territorial jurisdiction and thereafter another gazetted officer concerned was contacted over mobile phone, who had later come to the scene and had conducted search of the bodies of the Sub Inspector concerned and his Police team in the presence of the accused persons and thereafter, the Sub Inspector had conducted search of the bodies of the accused persons and their bags, which led to the retrieval of the contraband ganja articles coming to about 42.2 kgs. However, the specific contention urged by the petitioner is that the abovesaid factual versions given in B.A.No.2139/19 - : 10 :- Anx. A FIR, Anx. A-1 seizure mahazar and Anx. A5 remand report stand falsified by Anx. A-4 notice which only speaks about the Police officer concerned had informed the accused persons as to whether search is to be conducted in the presence of the gazetted officer and that the crucial aspect that the accused persons are having a vested legal right to demand for such a search to be conducted in the presence of gazetted officer, Magistrate, etc. is conspicuously missing and that therefore the abovesaid notice itself would show that the mandatory provisions of Sec. 50 have been violated and that this would also show that the contra version in Anx. A FIR, Anx. A1 seizure mahazar and Anx. A5 remand report are falsified versions. 9. After hearing both sides, this Court is of the view that merely because Anx. A4 notice does not explicitly mention about the aspect that the accused persons have a vested legal right to demand that search be conducted in the presence of a gazetted officer, Magistrate etc. as envisaged in Sec. 50 of the NDPS Act in Anx. A-4 notice, does not in any manner necessarily imply that the versions in Anx. A FIR, Anx. A-1 seizure mahazar and Anx. A5 remand report are falsified versions. 10. It has to be borne in mind that the Apex Court has held in the decisions as in _**Supdt. Narcotic Control Bureau, Chennai**_ B.A.No.2139/19 - : 11 :- _**v. R.Paulsamy**_ [(2000) 9 SCC 549] that matters which could be established only in offence regarding compliance with Sec.52 or Sec. 57 of the NDPS Act should not be pre-judged by the bail courts including the High Court exercising its powers under Sec. 439 of the Cr.P.C., at the consideration of the bail and the minimum which the High Court should have taken into account was the factual presumption in law that the official acts have been regularly performed and such presumption can be rebutted only during evidence, etc. 11. So the omission in Anx.A-4 notice about the aspect regarding the accused having vested legal right under Sec. 50(1) will not by itself falsify the prosecution records like Anx. A FIR, Anx. A-1 seizure mahazar and Anx. A5 remand report as at this stage of the bail consideration, this Court is obliged to take into consideration the presumption in law that such official acts have been regularly performed. Further the abovesaid vital prosecution records like Anx. A FIR, Anx. A-1 seizure mahazar and Anx. A5 remand report clearly show that immediately on getting strong smell of ganja, the Sub Inspector of Police had taken steps to contact nearest and available gazetted officers and the gazetted officer concerned had come to the scene and the bodies of the Police officials were searched in the B.A.No.2139/19 - : 12 :- presence of the accused persons. Later in the presence of the gazetted officer, the Sub Inspector of Police had conducted search of the bodies and the bags of the accused persons, which has led to the retrieval of the contraband ganja articles coming to about 42.2 kgs. If, as a matter of fact, the case was one wherein after getting a notice as similarly worded in Anx. A-4, the accused persons had taken the stand that they do not want the option of search in the presence of the gazetted officer as offered in that notice, then probably the case would have stood on a entirely different pedestal and the accused persons could have argued that because of the omission in Anx. A-4 notice to state that it is the vested legal right of the accused persons to demand that the search be conducted in the presence of the gazetted officer or Magistrate, etc. they were unaware about such legal right and therefore they decided not to opt for what was offered in notice like Anx. A-4 and that consequently they have suffered great prejudice, etc. That is not the case in the instant case. The prosecution records would clearly show that the Sub Inspector had clearly apprised the accused persons about their legal right under Sec. 50(1) to have the search conducted in the presence of the gazetted officer or Magistrate and thereupon the accused persons had informed that the search be conducted in the presence of a gazetted B.A.No.2139/19 - : 13 :- officer whereupon arrangements in that regard were made and the search was conducted as aforestated, etc. Therefore, merely because there has been omission in Anx. A-4 notice to explicitly state about the legal right of the accused persons to demand for search in the presence of gazetted officer or Magistrate as per Sec. 50 will not by itself make the search and seizure in violation of the provisions contained in Sec. 50 of the NDPS Act. 12. That apart, the learned Prosecutor has pointed out that in paragraph 57(1) of the directions issued by the Constitution Bench of Apex Court in the celebrated case in _**Baldev Singh's case**_ supra that such information about Sec.50 right may not necessarily be in writing. In the light of the abovesaid aspects, the abovesaid contention of the petitioner stands overruled. 13. The other subsidiary contentions raised by the petitioner is that there is variance in the time of arrest as shown in Anx.A3 arrest memo (wherein it is recorded as 2 a.m. on 18.2.2019) with the time of arrest shown in Anx. A FIR, Anx. A-1 seiziure and Anx. A5 remand report (therein it has been shown as 3 p.m. 18.2.2019) and also about the fact that the weight of the retrieved ganja articles has not been shown in Anx.A FIR, even though it has been stated in Anx. A-1 seizure mahazar, etc. B.A.No.2139/19 - : 14 :- 14. In this regard it is relevant to note that the Apex Court has held in various decisions as in _**UOI v. Siva Shankar Kesari**_ ((2007) 7 SCC 798] that twin conditions prescribed under Sec. 37(I) (b)(ii) of the NDPS Act, 1985 should necessarily be fulfilled before the court can grant bail to an accused who is alleged to have committed offence punishable under the sections mentioned therein and it was held that there should necessarily be satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail and if either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. Explaining the meaning of the expression “ _reasonable grounds_ ” as occurred in Sec. 37(I)(b) (ii) of the NDPS Act, the Apex Court has held that there must be existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is guilty of the offence charged. However, the court is not required to record a finding of not guilty, as it does while pronouncing a judgment of acquittal, after the conclusion of the trial and existence of some material is also necessary for coming to the conclusion as to second condition that the accused is not likely to commit any offence while on bail. So also, as mentioned herein above, the Apex Court has B.A.No.2139/19 - : 15 :- categorically held in various decisions as in _**R.Paulsamy's case**_ [(2000) 9 SCC 549] that in terms of the provisions contained in Sec. 37 of the NDPS Act, no accused can be released on bail when the application is opposed by the prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. Therein the Apex Court has held that it is unfortunate that matters which could be established only in offence regarding compliance with Sec. 52 and Sec. 57 have been pre-judged in that case by the learned Single Judge of the High Court at the stage of the consideration of the bail and the minimum the learned Single Judge should have taken into account was the factual presumption in law, that official acts have been regularly performed and that such presumption can be rebutted only during the evidence, etc. 15. On anxious consideration of the abovesaid pleas, this Court is of the considered view that the time of arrest recorded as 2 a.m. in Anx. A-3 arrest memo could only be a clerical mistake, as could be evaluated based on the overwhelming materials of the prosecution, like Anx. A FIR, Anx. A-1 seizure mahazar, Anx. A-5 remand report, etc. Moreover, the omission to state the total quantity of seized ganja in Anx. A FIR compared to that in Anx. A-1 seizure B.A.No.2139/19 - : 16 :- mahazar by itself, cannot be basis to hold in favour of the accused in terms of the parameters in Sec. 37(I)(b) of the NDPS Act. After hearing both sides, this Court is of the considered view that the abovesaid subsidiary contentions of the petitioner by itself will not enable this Court to hold that it is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offences, etc. In the light of these aspects, this Court is constrained to hold that the plea of the petitioner for grant of regular bail cannot be acceded to. The abovesaid findings and orders have been made by this Court herein above only from the limited perspective as to whether or not bail is to be granted to the petitioner and the said findings and orders in this order will not in any manner prejudice or trammel any of the contentions of the petitioner on those aspects, which he may raise in other appropriate proceedings in relation to this crime, including at trial. With these observations and directions, the aforecaptioned bail application will stand dismissed. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE**