Salman Faris v. State of Kerala and The Excise Circle Inspector, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945** ## **BAIL APPL. NO. 1990 OF 2023** **CRIME NO.50/2022 OF KOZHIKODE EXCISE RANGE OFFICE, KOZHIKODE** ## **PETITIONER/ACCUSED** **SALMAN FARIS AGED 25 YEARS S/O USMAN KOYA, KUNNATH PARAMBIL HOUSE, KOLATHARE P.O, CHERUVANNUR, KOZHIKODE DISTRICT, PIN - 673027** **BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA SRINATH C.V. ALWIN JOSEPH** ## **RESPONDENT/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 THE EXCISE CIRCLE INSPECTOR EXCISE RANGE OFFICE, KOZHIKODE, KOZHIKODE DISTRICT, PIN - 673001** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1990 OF 2023** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.50/2022 of the Excise Range Office, Kozhikode, registered against him for allegedly committing the offences punishable under Sections 22(c) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 21.11.2022. 2. The crux of the prosecution case is that, on 21.11.2022 at around 13.35 hours, the accused was found in conscious possession of 3.25 grams of LSD, 10 grams of MDMA and 5 gram of ganja which he was found transporting on his motorcycle bearing Reg.No.KL 11 AB 1888 through the Aravindghosh road, Kozhikode. Thus, the accused has committed the above offences. 3. Heard Sri.P.Mohamed Sabah, the learned counsel **BAIL APPL.NO.1990 OF 2023** **3** appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor appearing for the respondents. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 21.11.2022, which is more than 1½ years. The investigation in the case is complete and the final report has been laid. The petitioner's further detention is not necessary. In addition to the above contentions, there is a total violation of the mandatory procedural requirements under Sections 42 and 50 of the Act. There is no materials on record, even in the final report, to substantiate that the Investigating Officer had taken down in writing the information received by him to arrest the petitioner as provided under Section 42 of the Act or to conduct the search on the petitioner's body in the presence of a gazetted officer or the nearest Magistrate as provided under Section 50 of the Act. Therefore, the search and seizure are vitiated, and the petitioner is entitled to be **BAIL APPL.NO.1990 OF 2023** **4** released on bail as laid down by the Hon'ble Supreme Court in **Sarija Banu Alias Janarthani Alias Janani and another v. State through Inspector of Police** [(2004) 12 SCC 266] and the decision of this Court in **Majeed C.P. v. State of Kerala & Anr.** (B.A.No.6908 of 2023). Therefore, it is only to be presumed that the petitioner has not committed the alleged offences. Moreover, the petitioner has no criminal antecedents. Therefore, the rigour under Section 37 of the Act stands diluted. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. He contended that there is total compliance with Sections 42 and 50 of the Act. The petitioner was apprehended during a joint-combing operation that has been conducted by the Excise Circle Inspector with the State Excise Enforcement Squad. It was on inspecting the petitioner's motorcycle that they found that the petitioner was in possession of the contraband articles. The information in writing to arrest the petitioner has been recorded and **BAIL APPL.NO.1990 OF 2023** **5** produced with the final report. He drew the attention of this Court to page 14 of the final report produced as Annexure 4. He submitted the petitioner's body search was conducted in the presence of CW25. In fact, the petitioner was arrested with a packet in his hands. Consequently, the petitioner was asked whether he was willing for a body search in the presence of a gazetted officer/magistrate. But, the petitioner remained silent. Accordingly, CW 25 the Assistant Excise Commissioner was informed about the matter and he went to the spot and gave permission to the Investigating Officer to conduct the body search. In the body search, the remaining contraband was seized from the jeans pocket of the petitioner. Hence, the Investigating Officer has complied with Sections 42 and 50 of the Act. The learned Public Prosecutor placed reliance on the decisions of the Hon'ble Supreme Court in **State, NCT of Delhi v. Malvinder Singh** [2007 KHC 3750] and **Union of India v. Md. Nawaz Khan** [2021 KHC 6503] and the decision of this Court in and **Abeesh v. State of Kerala** [2022:KER:50902] and **BAIL APPL.NO.1990 OF 2023** **6** contended that in combing operations the strict compliance of Section 42 is not necessary. Even assuming that there has not been substantial compliance of Section 42, that is a question of fact to be considered at the time of trial. Since the contraband is of a commercial quantity, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. Hence, the application may be dismissed. 6. The prosecution allegation is that, on 21.11.2022 afternoon, two teams in a combing operation intercepted the petitioner and found him in possession of 3.25 grams of LSD, 10 grams of MDMA and 5 grams of ganja, which is of a commercial quantity. 7. The pivotal contention of the learned counsel for the petitioner is that there is violation of the mandatory procedural requirements contemplated under Sections 42 and 50 of the Act. The above submission was countered by the learned Public Prosecutor stating that there has been compliance of the above provisions, which is evident from Annexure 4 final report laid before the Trial Court. So **BAIL APPL.NO.1990 OF 2023** **7** whether there is sufficient compliance or not is a disputed question of fact. ## 8. In **Md. Nawaz Khan’s case** , the Hon'ble Supreme Court, after considering the earlier precedents on the point, has held thus: “28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana.” ## 9. The above view has been followed by this Court in **Abeesh's** case in the following lines: “8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham’s case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan’s case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with **8** Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act.” 10. In the light of the exposition of law in **Md. Nawaz Khan's** case and **Abeesh's** case, which I fully concur, I am of the firm view that the contention of the learned counsel for the petitioner, which has been countered by the Public Prosecutor, is a matter than can only be decided in trial and not at the stage of consideration of the bail application. On going through the materials placed on record, prima facie I am satisfied that there is substantial compliance of the above provisions, especially when the seizure was made in a joint combing operation and further CW25 has given permission to the Investigating Officer to conduct the body search of the petitioner. 11. It is to be remembered that, the contraband allegedly seized from the accused is of a commercial quantity. Therefore, the rigour under Section 37 of the Act **BAIL APPL.NO.1990 OF 2023** **9** applies to the facts of the case. 12. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is apposite to reproduce Section 37, which reads as follows: “37. **Offences to be cognizable and non-bailable** .—(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” ## 13. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving a commercial quantity shall not be released on bail unless the court is satisfied that **10** there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 14. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression 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. **Md. Nawaz Khan's** case, the Honourable ## Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the **BAIL APPL.NO.1990 OF 2023** **11** accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 16. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. ## 17. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being **BAIL APPL.NO.1990 OF 2023** **12** ## influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 18. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and the ratio decidendi in **Md. Nawaz Khan’s** and **Abeesh's** cases, and on being prima facie satisfied of substantial compliance of Sections 42 and 50 of the Act and the question whether the search and seizure were conducted in accordance with provisions of the Act is a matter of evidence, and further on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, the potential severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction, I do not find any reasonable ground to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence if he is enlarged on bail. Hence, I hold that the rigour under Section 37 of the Act applies to the facts of the case. Therefore, I am **BAIL APPL.NO.1990 OF 2023** **13** not inclined to enlarge the petitioner on bail. Resultantly, the application is dismissed. **Sd/C.S.DIAS JUDGE** **shg**