Shyju @ Pallan v. State of Kerala

**==> picture [36 x 56] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 BAIL APPL. NO. 1283 OF 2024 ``` ``` CRIME NO.911/2022 OF Pudukkad Police Station, Thrissur ``` ## **`PETITIONER/ACCUSED NO.2:`** ``` SHYJU @ PALLAN, AGED 42 YEARS S/O VARGHESE,MACHINGAL HOUSE, PANTHALLOOR DESOM, NELLAYI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN – 680305. BY ADVS. ABRAHAM MATHAN P.P.HARRIS ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, ``` ``` REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ## **`SENIOR GOVERNMENT PLEADER SRI DENNY DEVASSY.`** ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11.03.2024, THE COURT ON 15.03.2024 DELIVERED THE FOLLOWING: ``` B.A.No.1283/2024 2 **==> picture [389 x 37] intentionally omitted <==** ## _**“C.R”**_ _**A. BADHARUDEEN, J.**_ ================================ _B.A. No.1283 of 2024_ ================================ _Dated this the 15[th] day of March, 2024_ ## _**O R D E R**_ This is an application for regular bail filed by accused No.2 in Crime No.911/2022 of Pudukkad Police Station, Thrissur. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents form part of the case diary produced by the learned Public Prosecutor and the report of the Investigating Officer. 4. The prosecution allegation is that, at about 3:31 hrs. on 11.10.2022, based on a secret information received to the effect B.A.No.1283/2024 3 that, the 1[st] accused was transporting contraband in a car, bearing registration No.KL-08/N-4843, after recording the said information in the general diary in writing, the Sub Inspector and party stood at the relevant place and intercepted the car. When the driver of the car was questioned, he had given inconsistent answers and thereafter, he was personally searched, after complying Section 50 of the NDPS Act and thereby, 21.05 Kgs of Ganja was seized. Accordingly, crime was registered alleging commission of the above offences. Subsequent to the arrest of the 1[st] accused, Satheesan, accused Nos.2 and 3 were incorporated in this crime and thereby prosecution alleges commission of offences punishable under Sections 20(b)(ii) C, 27A and 29 of the NDPS Act. 5. The learned counsel for the petitioner zealously argued to canvass regular bail to the 2[nd] accused mainly on two grounds. It is submitted that, in this matter search was conducted in between `sunset and sunrise’ violating the mandate of second proviso to B.A.No.1283/2024 4 Section 42(1) of the NDPS Act. In this connection, the learned counsel referred paragraph 15 of the order in B.A.No1197/2023 dated 22.03.2023 whereby this Court dismissed the bail application of the 1[st] accused. In paragraph 15 of the above order, it was found relying on [2021 KHC 6240], _**Boota Singh and Others v. State of Haryana**_ that second proviso to Section 2(1) of the NDPS Act has been violated. But this Court dismissed the bail plea at the instance of the 1[st] accused observing in paragraph 16 as under: _“16. Even though the learned Public Prosecutor attempted to treat the vehicle, from which the contraband was seized would come within the meaning, ‘public vehicle’ dealt with under Section 43 of the NDPS Act, the available materials do not justify such contention. At this juncture, the learned Public Prosecutor given emphasis to the decision of the Apex Court, reported in [2021(10) SCC 100],_ _**Union of India through NCB, Lucknow v. Md. Navaz Khan** , to contend that at the time of grant of bail, the question as regards compliance or non-compliance of Section 42 of the Act is not strictly required to be gone into, as the same is a matter, which would best to be left adjudicated at the time of trial. According to the learned Public Prosecutor, since non-compliance regarding Section 42 in so far as 2nd proviso, the same shall be relegated to the trial court to decide_ B.A.No.1283/2024 5 _the same on merits during evidence and merely because of noncompliance of 2nd proviso to Section 42(1) of the NDPS Act, the rigour under Section 37 of the NDPS Act, cannot either be diluted or to be given a go-by to grant bail since compliance of Section 37 is mandatory in nature as held by the Apex Court in a catena of decisions.”_ 6. The learned Public Prosecutor also submitted that in the decisions reported in [(1994) 3 SCC 299], _**State of Punjab v. Balbir Singh**_ and _**Union of India through NCB, Lucknow v. Md. Navaz Khan**_ ( _supra_ ) also the Apex Court held that those aspects to be considered during trail. 7. The second point argued by the learned counsel for the petitioner is relying on an order of a coordinate Bench of this Court in B.A.No.66 of 2024 dated 27.02.2024. It is pointed out by the learned counsel for the petitioner that in this order the learned Single Judge of this Court after referring Rules 3 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022, which came into effect from B.A.No.1283/2024 6 23.12.2022 and after referring the decision in [(2016) 3 SCC 379], _**Union of India v. Mohanlal**_ , and subsequent decisions on this point, in paragraph 19 it has been observed that _in this case, irrefutably, the contraband was seized separately by the Detecting Officer from the bodies of accused 1 and 2 in two separate covers. He thereafter mixed the contraband without the permission of the Magistrate and put them in one cover without drawing the representative samples from the two covers. It was the sample that was drawn from the one cover, that was sent for chemical analysis in total contravention of the law. When the statutory provisions mandate a particular procedure to be followed, the Detecting Officer is duty-bound to follow the prescribed procedure. No person can assume the nature of the substance on speculation and conjectures. It is to ensure a fair trial that the legislature has_ . _incorporated the above safeguards in the above provisions_ 8. It is also pointed out that, in the said decision, pointing B.A.No.1283/2024 7 out the anomaly as extracted herein above, the learned Single Judge of this Court observed in paragraph 28 that _on an overall conspectus of the facts, rival submission made across the Bar, the law referred to the afore-cited judgments and my findings rendered above, particularly regarding the infraction of the statutory provisions by the Detecting Officer, which has obviously caused prejudice to the petitioner, and on comprehending the fact that petitioner has no criminal antecedents, I find that there are reasonable grounds to hold that the petitioner has not committed the alleged offence and is not likely to commit the offence. Therefore, the rigour under Section 37 stands diluted and the petitioner is entitled to be released on bail_ . Finally bail was granted to the petitioner. 9. On perusal of the case dealt in B.A.No.66 of 2024, that is a case where recovery was effected on 28.07.2023, that is, after coming into force of the Narcotic Drugs and Psychotropic B.A.No.1283/2024 8 Substances (seizure, storage, sampling and disposal) Rules, 2022 w.e.f 23.12.2022. 10. It is submitted by the learned Public Prosecutor that as far as the observation in paragraph 28 of the order in B.A.No.66/2024, the prosecution has serious objection as the same is against the fundamental tenets of criminal law to record a finding without trial and therefore the prosecution would challenge the said finding before the Apex Court, since such a finding at the bail stage is not legally sustainable and the same tantamounts to acquittal of the accused at the bail stage. This submission recorded. 11. In this connection it is relevant to refer a decision placed by the learned Public Prosecutor of the Apex Court reported in [(2013) 1 SCC 395], _**Sumit Tomar v. State of Punjab**_ wherein the Apex Court considered a case where the contents of bags were mixed and 2 samples of 250 gram each were taken out and the remaining contraband weighing 69.50 kg sealed in 2 bags and B.A.No.1283/2024 9 samples were sent to forensic science laboratory (FSL) for examination and held that mixing up contraband found in bags and taking samples thereafter by itself has no substance as a point to argue to disbelieve the prosecution case. 12. It is not in dispute that as per Section 76 of the NDPS Act, the Central Government was empowered to promulgate rules to effectuate the provisions of the NDPS Act. But whether the rules are strictly followed or there are violations are matters to be relegated to the trial court to decide upon on evidence and it is not fair to lay down a law that, because there are violations of certain parameters, no _prima facie_ offence is made out to dilute rider under Section 37 of the NDPS Act. 13. Coming to the facts of this case. This case was registered on 11.10.2022. The Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022 came into force only w.e.f 23.12.2022, ie., after detection of this B.A.No.1283/2024 10 crime. Therefore, the procedure laid down in Rules 3 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022 could not apply to this case, which was registered prior to the introduction of the Rules. 14. In the instant case the 2[nd] accused, who also involved in this crime was arrested on 10.11.2023. The learned Public Prosecutor placed the antecedents of the petitioner, who involved in 27 crimes prior to this crime, as shown under: `SL NO POLICE STATION CRIME NO & SECTION OF LAW` 1 `Thrissur East Cr. 538/02 U/S 341, 323,308 IPC` 2 `Thrissur East Cr. 636/02 U/S 20 R/W 27 of Arms Act` 3 `Nedupuzha Cr.088/02 U/S 392 IPC` 4 `Nedupuzha Cr. 218/03 U/S 143,147,148, 323, 324, 308, 149 IPC` 5 `Nedupuzha Cr. 209/04 U/S 107 CrPC` 6 `Nedupuzha Cr. 074/04 U/S 143, 147, 148, 324, 308, 149 IPC` B.A.No.1283/2024 11 |7|Nedupuzha|`Cr 171/07 U/s 120(B), 129, 143, 144 147 148`| |---|---|---| |||`448 302, 147 IPC 27 of Arms Act`| |8|`Pudukkad`|`Cr. 203/04 U/S 55(a), 8(1)(2) Abkari Act`| |9|`Thrissur East`|`Cr. 637/06 U/s 365, 395, 120 (b), 27 of Arms`| |||`Act`| |10|`Kottakkal`|`Cr. 153/07 U/S 365,395 IPC`| |11|`Chengamanad`|`Cr.575/07 U/S 395,120(b),412.149 IPC`| |12|`Pulpally`|`Cr. 273/07 U/S 341, 323, 294(b) 11 506 34`| |||`IPC, (1)3Arms act`| |13|`Kodakara`|`Cr. 532/10 U/S 399 IPC`| |14|`Kodakara`|`Cr.1174/22 U/s 6(B) R/W 24 COTPA & 118(i) KP`| |||`Act`| |15|`Ollur`|`Cr. 1705/14 U/S 15 KG Act`| |16|`Sulathanbathery`|`Cr. 177/16 U/s 120(b),365,395,2011PC`| |17|`Thirunelly`|`Cr. 385/18 U/s 109.120(B).395,212 IPC`| |18|`Gundlupet`|`Cr. 13/18 U/S 395,397`| |19|`Irinajalakuda`|`Cr. 06/20 U/s 20 (b)(1)(B) Of NDPS Act`| |20|`Kodakara`|`Cr. 96/21 U/s 341.323.294(b),506 IPC`| |21|`Kodakara`|`Cr. 451/21 U/S 447,294(b).506 (i), 34 IPC`| |22|`Kodakara`|`Cr. 452/21 U/S 447,294(b).506.(1) 34 IPC`| |23|`Kodakara`|`Cr.512/21 U/S 323, 324, 294, 341, 148, 147,`| B.A.No.1283/2024 12 `143b),506,427,308.149 IPC` 24 `Kodakara Cr.513/21 143,147,48341.323.324,2040 506(1.326308427 149 PC` 25 `Kodakara Cr,446/22 /S 15(4) R/W 19 KAPPA Act` 26 `Perinthalmanna 1000/23 U/S 20(b) II (C) & 29 of NDPS Act` 27 `Pedakkakkani Cr. 275/23 U/s 20(b)II(C), 8(c) of NDPS Act Andhra Pradesh` 15. On perusal of the crime history of the petitioner, it is noticed that he has involvement in multiple crimes of serious nature including murder and attempt to commit murder. Apart from that, he is involved in 3 NDPS crimes and 2 out of the same are involving commercial quantity, prior to this crime involving commercial quantity of contraband. 16. In the decision reported in [2024 KHC 142 : [2024 (2) KHC 218 : 2024 KER 13405], _**Muhammed Kaiz v. State of Kerala**_ , this Court considered the impact of Section 37 of the NDPS Act in view of the divergent decisions in this regard with particular reference to the 3 Judge Bench of the Apex Court reported in [2022 SCC OnLine 929], _**Vijay Madanlal Chaudhary v. Union of India**_ and B.A.No.1283/2024 13 held that when an accused alleged to have committed offences involving commercial quantity of contraband, where the rider under Section 37 of the NDPS Act would apply, length of period of custody, or the fact that charge sheet has been filed and trial has commenced or not commenced, are not considerations that could be treated as persuasive for granting bail diluting the rider under Section 37 of the NDPS Act. Therefore, this Court held that the decision in _**Fasil**_ **’** s case ( _supra_ ) is not good law. Therefore, the ratio in _**Fasil**_ ’s case ( _supra_ ) and other decisions holding the same view, could not be followed. It is noted that in the decision in _**Jijendran**_ ’s case ( _supra_ ) also, this Court applied some what same ratio in **Fasil** ’s case ( _supra_ ). In view of the law laid down in _**Vijay Madanlal Chaudhary**_ ’s case ( _supra_ ), _**Jijendran**_ ’s case ( _supra_ ) also not good law to be followed. In so far as satisfaction of the twin conditions provided in Section 37(1) (b) of the NDPS Act is concerned, viz., (1) the Court is satisfied that there are reasonable B.A.No.1283/2024 14 grounds for believing that he (accused) is not guilty of the offence and (2) that he (accused) is not likely to commit any offence while on bail; satisfaction of both conditions are mandatory. The rationale is; the rules of interpretation of Statutes mandate that when two classes joined by the term `and’ the same could not be read as `disjunctive’ (separately) and conjunctive (together). Therefore, satisfaction of one out of the two conditions also not sufficient to grant bail. 17. Having analysed the plea of the petitioner in the context of the discussion, the petitioner doesn’t deserve bail. Therefore, this petition must fail. 18. Accordingly, the bail application stands dismissed. Since the procedure for disposal of seized narcotic drugs provided under Section 52A to be as per Rules 3 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022, forward a copy of this order to B.A.No.1283/2024 15 the Advocate General and the Director General of Prosecution, to communicate the same to the Investigating Officers with direction to scrupulously follow the same without fail, hereafter. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_