SAKKARIYA.K.P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943** ## **BAIL APPL. NO. 3119 OF 2021** ## **CRIME NO.3119/2021 OF THAMARASSERY POLICE STATION, KOZHIKODE PETITIONER/S:** SAKKARIYA.K.P. AGED 24 YEARS SON OF UMMER, KUNNUMPURAM HOUSE, THACHAM POYIL, KODUVOOR, THAMARASSERY, KOZHIKODE, PIN - 673573 BY ADV T.G.RAJENDRAN ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SR.PP.SRI.SANTHOSH PETER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.06.2021, THE COURT ON 25.06.2021 DELIVERED THE FOLLOWING: BA 3119/2021 2 ## ASHOK MENON, J. ------------------------------------ ## BA No. 3119 of 2021 ------------------------------------- Dated this the 25[th] day of June, 2021 ## O R D E R Application filed under Section 439 of the Cr.P.C., for regular bail. 2. The applicant is the 3[rd] accused in Crime No.784/2020 of Thamarassery Police Station for having allegedly committed offences punishable under Sections 22(b) and 22(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act' for short). BA 3119/2021 3 3. The prosecution case, in brief, is that on 28/08/2020 at about 11:25 PM the applicant and the rest of the three accused were found inside the car bearing registration No. KL-11 BN 6983, parked beside the road at Andoda in Raroth Village under suspicious circumstances and on searching, 240 Mg of LSD and 790 Mg of MDMA were seized and they had allegedly conspired to procure and pedal the aforesaid psychotropic substances in violation of the provisions of the NDPS Act. The accused were all arrested and remanded to judicial custody. The applications for bail preferred before the Special Judge (NDPS cases), Vadakara were BA 3119/2021 4 dismissed vide Common Order at Annexure-1. The applicant has approached this Court for indulgence seeking bail. 4. The main contention raised by the applicant in this bail application is that there was non-compliance of the mandatory provisions of Section 42 of the NDPS Act and therefore, there are reasonable grounds to believe that the applicant is not guilty and since the applicant has no other criminal antecedents, there is no possibility of his committing a similar offence while on bail. Hence, the applicant seeks bail. BA 3119/2021 5 5. Heard Sri V.A.Vinod, the learned counsel representing the applicant, and Sri Santosh Peter, the learned Senior Public Prosecutor appearing for the State. Records perused. 6. The main argument raised by the learned counsel for the applicant is that the seizure was made from a private car in which the applicant and the rest of the accused were allegedly sitting. There is non-compliance of S.42 of the NDPS Act, which is mandatory as is held by the Hon'ble Supreme Court in Karnail Singh vs. State of Haryana [2009 (8) SCC 539] , BA 3119/2021 6 followed by the Apex Court decision in State of Rajasthan vs. Jag Raj Singh @ Hansa [2016 KHC 6413: AIR 2016 SC 3041] . 7. The learned Prosecutor Sri.Santosh Peter submits that from Annexure-A3 seizure mahazar it is adequately clear that the detecting officer had received a piece of reliable information at about 11 PM, about a Maruti Swift car parked beside the road under suspicious circumstances, and consequent to that, he recorded the information and also made a GD entry and send the report to the Thamarassery Police inspector, his superior officer, in compliance with BA 3119/2021 7 S.42(2) of the NDPS Act, by hand through a civil Police officer present in the station, and thereafter proceeded to the scene of occurrence and found the car with four people sitting inside. After complying with the provisions under Section 50, the persons inside the car were subjected to search and the aforementioned contraband articles were seized. The learned Prosecutor submits that there is sufficient compliance of Section 42, and also Section 50 and therefore, the applicant is not entitled to submit that there are reasonable grounds to believe that he is not guilty. In view of the embargo under BA 3119/2021 8 Section 37 of the NDPS Act, the applicant is not entitled to bail, submits the learned Prosecutor. 8. There is no doubt that compliance of Sections 42 and 50 of the NDPS Act is mandatory and non-compliance would render the investigation invalid. (See State of Punjab vs. Baldev Singh [1999 (6) SCC 172] ). The Constitution Bench in Baldev Singh (supra) held that if search is conducted in violation of S.50, it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is it about non- BA 3119/2021 9 compliance of S.50 is also true concerning non-compliance of Section 42 of the NDPS Act. Another Constitution Bench of the Hon'ble Apex Court in Karnail Singh (supra), considered the provisions of Sections 42 and 50 and concluded that noncompliance of the requirement under S.42, and Section 50 is impermissible whereas the late compliance with satisfactory explanation will be acceptable compliance of S.42. 9. In Jag Raj Singh (supra) relied upon by the learned counsel appearing for the applicant, the facts would suggest that there was total non-compliance of S.42 of the NDPS Act, BA 3119/2021 10 and hence, the conviction of the accused therein, set aside by the Rajasthan High Court was confirmed. 10. The seizure, in this case, was from inside a private car and not from any public place or conveyance and hence there is no doubt that compliance of S.42 is what is attracted in this case, and not S.43. The Hon'ble Supreme Court has in Sarija Banu @ Janarthani @ Janani and another vs. State through Inspector of Police, [2004 KHC 1683: 2004 (12) SCC 266] held that non-compliance of Section 42 of the NDPS Act can be considered by the Court, even while considering the BA 3119/2021 11 bail application. Under the circumstances, I agree with the learned counsel for the applicant on the point that compliance of S.42 is mandatory, and that this case is of no exception. But I am not in agreement with the learned counsel's argument that there was no compliance of S.42 at all. The seizure mahazar produced as Annexure-3 indicates compliance of S.42 and S.50 by the detecting officer. Whether there was sufficient compliance of these provisions is a matter to be considered by the trial Court based on the evidence adduced by the prosecution. The right of the prosecution to adduce evidence in this regard cannot be shut down at this stage when BA 3119/2021 12 the investigation is still going on. In Karnail Singh 's case (supra), it is held that delay in compliance of S.42 with satisfactory explanation will be acceptable compliance of S.42. I do not intend to deprive the prosecution of an opportunity to adduce evidence during trial to convince the Court about due compliance of Sections 42 and 50 and throw their case overboard at the threshold. The bail application is dismissed. Sd/ASHOK MENON JUDGE jg