Vineeth (2nd accused) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944 BAIL APPL. NO. 9296 OF 2022** ## **PETITIONER/2ND ACCUSED:** VINEETH AGED 30 YEARS KALEKKAL VADAKKATHIL HOUSE, MANAKKAD MURI, MAVELIKKARA VILLAGE CHINGOLI P.O., HARIPAD , PIN - 690532 BY ADVS. ANJANA S. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** PP:Seetha S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No. 9296 of 2022 2** ## **VIJU ABRAHAM, J.** ## **------------------------** ## **B.A. No. 9296 of 2022** **-----------------------------Dated this the 12[th] day of December, 2022** ## **ORDER** This is an application for regular bail. 2. The petitioner is the 2nd accused in Crime No.26/2022 of Mavelikara Excise Range Office registered for the offence punishable under Section 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution allegation is that the Excise Range Inspector Mavelikara got information from Intelligence Bureau, Alappuzha that the accused person in the above-mentioned case were handling Ganja at the house of the 1st accused and in Vehicle bearing Reg. No. KL 31 M 8049. The Excise party reached the house of the 1st accused and saw that two persons were sitting in a red coloured car which was parked at the porch of the house of the 1st accused. On seeing the Excise party, the driver ## **B.A. No. 9296 of 2022 3** tried to escape from the scene and the Excise party apprehended them. It is alleged that during the search, 10 grams of Ganja was recovered from the petitioner, and 50 grams of ganja was found kept in the dashboard of the car. It is alleged that in the subsequent search conducted in the house of the 1st accused, 21.112 kilograms of ganja was also detected. 4. Petitioner submits that he has been falsely implicated in the above-said crime and that he is in custody from 30.08.2022 onwards. Even going by the prosecution case, only 10 gms of Ganja was seized from the possession of the petitioner. There are discrepancies in the date and time regarding the occurrence and search in the Crime and Occurrence report and other documents. Petitioner also has a contention that there is non-compliance of Section 50 of the NDPS Act and even if it is admitted for argument sake that the petitioner was informed of the right under Section 50 of the NDPS Act, there is no statement as to the response of the petitioner ## **B.A. No. 9296 of 2022 4** with regard to the same. Even though the petitioner moved an application before the Sessions Court, the same was rejected as per Annexure C order. Petitioner relying on Annexures-A,B,D,E & F documents contended that the date and time shown these documents differs and therefore, in view of the said discrepancy there is no chance of conviction and therefore, he is entitled for bail. The specific case of the petitioner that only the 1st accused was informed about the right to be examined in the presence of a magistrate or a gazetted officer and that the body search of the petitioner was conducted without informing him about such right guaranteed under Section 50 of the NDPS Act. It is further contended that since there is no compliance with Section 50 of the NDPS Act, and even if there is further recovery which is not from the person of the accused, still the search is vitiated. It is also contended that when there is no evidence to suggest that there was any abetment/criminal conspiracy, even if two accused were found together, ## **B.A. No. 9296 of 2022 5** individually carrying narcotic substances, Section 29 of the Act is not attracted. To substantiate these contentions, the petitioner relies on _**Dileep and another v. State of Madhya Pradesh, (2007) 1 SCC 450; State of Punjab v. Baldev Singh, (1999) 6 SCC 172; Sanjeev and another v. State of Himachal Pradesh, (2022) 6 SCC 294; State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345; State of UP v. Subhash Kumar Singh Tomar, 2009 KHC 489; Basanth Balram and another v. State of Kerala, 2019 (1) KHC 667; Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550; Ganesh v. State of Kerala, 2022 (2) KHC 196.**_ 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. Learned public prosecutor upon instructions submitted that on getting information that accused nos. 1 and 2 are jointly holding large quantity of **Ganja** , the excise party reached the house and found accused nos. 1 and 2 sitting inside the car and on seeing them they attempted to start the car to ## **B.A. No. 9296 of 2022 6** escape, they were apprehended and after complying with procedures contemplated under Section 50 of the NDPS Act, the search was conducted in the presence of a gazetted officer. 20 gms of Ganja was seized from the shirt pocket of the 1st accused, 10 gms of Ganja was seized from the pants pocket of the petitioner, and 50 gms of Ganja was seized from the dashboard of the car. On the basis of the statement given by the 1st accused, 21.112 kg of Ganja and an electronic weighing machine was seized from the house of the 1st accused. The investigation is going on and the petitioner is arrested only on 30.08.2022. The investigation so far revealed that one Rajesh is the source of the alleged contraband and there were frequent calls to the mobile of the said Rajesh from both the accused and they were found present in the same tower location on the date of registration of the case. The 1[st] accused is involved in five other criminal cases, the details are as follows: (1) Crime No.922 of 2015 offence under Section 279 of IPC, (2) Crime No.1136 of 2015 ## **B.A. No. 9296 of 2022 7** u/S.279 of IPC, (3) Crime No.1044 of 2018 u/Ss.(6)24 COTPA, 77 JJ Act,(4) Crime No.915 of 2020 u/Ss.279, 276 of IPC 1860(188), KP Act 2011, 118(e) 4,5 KEDO and (5) Crime No.650 of 2020, U/Ss 279, 276 of IPC 1860 (188), KP Act 2011, 118(e) 4,5, KEDO. 7. As regards the contention regarding the difference in dates in the documents relied on by the petitioner, the learned public prosecutor submitted that the search was started on 29.08.2022 at 10.20 p.m. and it ended only on the next day, 30.08.2022 and that is the reason why different dates are seen in the various documents relied on by the petitioner. The learned public prosecutor further submitted that written intimation was given to the petitioner also regarding his right to be searched in the presence of a magistrate or a gazetted officer. Even if there is any violation of Section 50 as alleged by the petitioner, the alleged seizure of 21.112 kgs of Ganja cannot be invalidated. Learned public prosecutor further relies on the judgment in _**Baldev Singh’s**_ case supra ## **B.A. No. 9296 of 2022 8** and also the judgments in _**State of Punjab v. Baljinder Singh and another, 2019 KHC 7150**_ and _**Dayalu Kashyap v. State of Chhattisgarh**_ , **2022 SCC OnLine SC 334** . 8. I have considered the rival contentions of both sides. The contention of the petitioner based on _**Baldev Singh’s**_ case is that illicit articles seized from the person of the accused during a search conducted in violation of Section 50 of the Act cannot be used as evidence as proof of unlawful possession of the contraband and any other materials recovered during the search could be relied on by the prosecution in other proceedings against the accused and therefore it is contended that other recoveries made cannot be relied on in the present case and can only be relied on the other proceedings. It is seen that one of the conclusions that was arrived by the Apex Court in the said judgment that the said recovery could be used or relied on in any other proceedings, but in conclusion No. 3 of the said judgment, it was held ## **B.A. No. 9296 of 2022 9** that the failure to conduct the search as mandated by Section 50, **may not vitiate the trial** but would render the recovery of the illicit article and vitiate the conviction and sentence where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. In the present case, recovery is not only from the person of the accused but commercial quantity of Ganja was seized from the house of the 1st accused based on his statement. _**Parmanand**_ ’s case supra relied on by the petitioner was essentially following the judgment of the Apex Court in _**Dileep’s**_ case supra. The Apex Court in **Baljinder Singh’s** case supra has considered a similar question and relied on conclusion No. 3 recorded in **Baldev Singh’s** case supra and has held that merely because there was noncompliance of Section 50 of the Act as far as personal search is concerned, no benefit can be extended so as to invalidate the effect of recovery ## **B.A. No. 9296 of 2022 10** from the search of the vehicle and any such idea would be directly in the teeth of conclusion No.3 in _**Baldev Singh’s**_ case supra. The Apex Court in the said case has also held that the finding in _**Dileep’s**_ case supra is not correct and is opposed to the law down by the Apex Court in _**Baldev Singh’s**_ case supra and other cases. In view of the same, the reliance placed by the petitioner in _**Parmanand**_ ’s case supra and _**Dileep’s**_ case supra is prima facie not acceptable. The Apex Court has again considered the said issue in _**Dayalu Kashyap**_ ’s case supra and has taken a similar stand as taken in **Baljinder Singh’s** case supra. As regard the reliance placed in _**Amarsingh Ramjibhai Barot**_ ’s case supra, it is the specific case of the prosecution that the alleged contraband was brought jointly by both the petitioners and therefore, the applicability of Section 29 of the NDPS Act is a matter to be considered at the time of trial. Considering all these aspects into consideration, and taking into consideration the fact that ## **B.A. No. 9296 of 2022 11** commercial quantity of contraband is involved whereby rigor of Section 37 of the Act will come into play and further that the investigation is only at the initial stage, I am not inclined to grant bail to the petitioner at this stage. It is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits during the trial. sd/- **VIJU ABRAHAM, JUDGE** pm