Shahabas K & Uma.M v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** **BAIL APPL. NO. 5763 OF 2021** **AGAINST THE ORDER IN CRMP 52/2021 OF DISTRICT COURT & SESSIONS** ## **COURT, KOZHIKODE** ## **PETITIONERS/ACCUSED NOS. 6 & 7:** 1 SHAHABAS K, AGED 24 YEARS OCC-LABOURER,S/O/.ABDUL NASAR,KUNNOTH VEEDU, CHERUKATTOOR AMSOM DESOM,MANANTHAVADI TALUK, WAYANAD DIST. 2 UMA.M, AGED 24 YEARS,D/O MANIKANDAN.M,KADUCHIRA, PATTANCHERY AMSAM DESAM, CHITTOOR TALUK,PALAKKAD DISTRICT. BY ADV BIJU ANTONY ALOOR ## **RESPONDENTS/CPMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE CIRCLE INSPECTOR OF EXCISE, EXCISE RANGE OFFICE,THALIPARAMBU, KANNUR DISTRICT,PIN-670141. ## **OTHER PRESENT:** C.K.SURESH- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON 07.10.2021 PASSED THE FOLLOWING: B.A.5763/2021 2 ## ORDER Dated this the 7[th] day of October, 2021 This successive application for bail has been filed by the petitioners, who are accused Nos. 6 and 7 in Crime No. 1 of 2021 of Taliparambu Excise Circle, Kannur District registered for the offences punishable under Sections 22(c), 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'). 2. The petitioners are in custody since 01.01.2021. 3. The prosecution allegation is that on 01.01.2021, the Excise Range Inspector of Taliparamba Range, on getting reliable information that certain persons are engaged with sale of narcotic items in a hotel by name Sneha Bar Inn Hotel at Bakalam, Taliparamba, and he along with his party proceeded to the said hotel and conducted search in some rooms of the hotel and in Room No. 103 they could find the petitioners and the B.A.5763/2021 3 other accused with narcotic drugs. After complying with the formalities, the same was seized by the officials and thus they were booked for having committed the offences in contravention of the provisions of the NDPS Act. 4. According to the learned counsel for the petitioners, they are falsely implicated in the case and in fact they have not committed any offence as alleged by the prosecution. Though they are totally innocent, they are undergoing incarceration from the date of their arrest on 01.01.2021. 5. The learned Public Prosecutor refuted the plea raised by the learned counsel for the petitioner and contended that the petitioners along with the other accused were found in possession of narcotic drugs and they were engaged in dealing with narcotic drugs and in fact they were found packing the same in small packets for conducting sale of the same. After complying with the formalities, the narcotic items were seized and thus the case was registered against them. But as the investigation of the case was not complete within the stipulated B.A.5763/2021 4 time a report under Section 36A(4) of the NDPS Act was filed by the learned Public Prosecutor before the Special Court and the said application was allowed granting further time of two months to complete the investigation. Thereafter, the investigation was completed and charge sheet was submitted before the court on 03.08.2021 and now the case is pending trial. So, at this stage, if the petitioners are released on bail, there is every possibility to tamper with the evidence as well to flee from justice. Hence, the application is vehemently opposed by the learned Public Prosecutor. 6. The contraband involved in this case is 1750 grams of LSD, 53 grms of MDMA and 5.37 grms of Hasish oil. The CD file would further reveal that the Excise officials conducted search in the hotel by name Sneha Bar Inn at Bakalam on getting reliable information and they proceeded after complying with the formalities and search was conducted in the hotel. When they reached the room, they found the petitioners and the other accused involved in packing of the narcotic drugs in small B.A.5763/2021 5 packages for the purpose of sale and they were arrested after complying with the formalities. Admittedly the investigation of the case could not be completed within 180 days of the arrest and detection of the narcotic drugs. So, a report under Section 36(A)(iv) was filed and the said report was accepted and time was granted by the court on 2[nd] June, 2021. The said order was challenged by these petitioners before this Court in Crl.M.C. No. 3106 of 2021. This Court, after considering all the arguments on merits, dismissed the Crl.M.C filed by these petitioners and thereafter the investigation of the case has been completed and charge sheet has been filed. 7. The learned counsel has pointed out the decision in **State of Rajasthan** v. **Promod Nath** (AIR 2014 SC 1384) and contended that as Section 50( 1) of the NDPS Act has not been complied with, the entire procedure is vitiated and the rigor under Section 37 of NDPS Act would not apply and so they are entitled to be released on bail. So also, the learned counsel has pointed out the decisions reported in **Basant Balram** v. **State of** B.A.5763/2021 6 **Kerala** (2019(1) KHC 667) and **Muhammed Meen** v. **Narcotic Control Bureau, Cochin** (2020 (1) KHC 645) to argue that the expression "reasonable grounds" has not been defined in the NDPS Act, but it is something more than a prima facie case as referred in the decisions and if strict interpretation is given, the petitioners cannot be found guilty of the offences alleged against them. The learned counsel has also relied on the decision reported in **Muthu Kumar** v. **Station House Officer, Kottakkal Police Station** (2008 (2) KLJ 379) to argue that both these petitioners were not found with commercial quantity of narcotic drugs and hence entitled to be released on bail. 8. The learned Public Prosecutor has pointed out that in **State of Punjab** v. **Baldev Singh** (1999 KHC 707) a Constitution Bench of the Apex Court held that if the recovery is effected without prior information, Section 50 of the NDPS Act is not attracted. In other cases strict compliance of Section 50 is mandatory and Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in B.A.5763/2021 7 Section 50. Here, the records would reveal that the Detecting Officers have received reliable information and that was reduced into writing and forwarded to his immediate official superior before proceeding to detect the same. But whether the provisions under Section 50 of the NDPS Act has been strictly complied with by the Detecting Officers is a matter which is to be ascertained and evaluated only at the time of trial. In **Baldev Singh's case** (supra), it has been observed in paragraph 28 as follows: “28......As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend creditibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important B.A.5763/2021 8 but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.“ ## In paragraph 33 it was held as follows: “33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial." ## 9. So, at the time of trial only the argument addressed by the learned counsel for the petitioners can be ascertained. The B.A.5763/2021 9 contraband seized by the Detecting Officer in this case is commercial quantity. As per Section 37 (1)(b)(ii) of the NDPS Act, there are limitations in granting bail to an accused who is involved in dealing with commercial quantity of narcotic drugs. (See **Union of India** v. **Shiv Shanker Kesari** ((2007) 7 SCC 798). 10. In **State of Kerala v. Rajesh** (2020(1) KHC 557) in paragraph 20 and 21 it was held as follows: “20. The scheme of S. 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S. 439 of the Cr.PC, but is also subject to the limitation placed by S.37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban of granting bail operates. B.A.5763/2021 10 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of S.37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” 11. Here, in view of the above decisions, no doubt no reasonable grounds exist to show that the petitioners are innocent. In a case registered under the NDPS Act ,provision of reverse onus is a relevant factor. So also, no circumstance exists to conclude that if they are released on bail, there is no chance to repeat similar offences. Moreover, now charge sheet has been submitted by the investigating officer and the case is ready for trial. Such being the case, I find that the petitioners B.A.5763/2021 11 are not entitled to be released on bail. But as the petitioners are in custody since 01.012021, the court concerned shall take all endeavor to dispose of the case without delay. Dismissed. Sd/- SHIRCY V JUDGE sb