IMPORTANT POINT
When statutory provisions mandate a particular procedure to be followed, Detecting Officer is duty-bound to follow prescribed procedure – No person can assume nature of substance on speculation and conjectures.

ORDER

The Petitioner, who is the first accused in Crime No.1162/2023 of the Kodungallur Police Station, Thrissur, registered against him and two others for allegedly committing the offence under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (‘Act’ for brevity), has filed the application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC). The petitioner was arrested on 28.7.2023.

2. The essence of the prosecution case is as follows:

On 28.7.2023, at around 18.30 hours, when the first accused was riding the motorcycle bearing No. KL 47 F-6838 through the Mala-Kodungallur Road, with the second accused and a child in conflict with the law (CCL) on the pillion, the Sub Inspector of Police intercepted the vehicle and conducted a search, and he seized 36.00 and 24.90 grams of Methamphetamine from the first and second accused, respectively, i.e., a total quantity of 58.55 grams of Methamphetamine (hereinafter referred to as ‘contraband’). Thereby, the accused have committed the above offences.

3. Heard; Sri. K. Mohammed Rafeeq., the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner argued that the petitioner is innocent of the accusations levelled against him. The Detecting Officer has planted him as an accused. The petitioner had offered a lift to the second accused and the CCL. At that time, the Police party intercepted the vehicle and questioned the petitioner for carrying two pillion riders. When the petitioner attempted to justify his action, that the CCL was a minor, there was an altercation, and as an aftermath of that, the present crime was registered. Even assuming the prosecution allegation to be true, the contraband allegedly seized from the accused is of an intermediate quantity and, therefore, the rigour under Section 37 will not be attracted. The prosecution has deliberately incorporated Section 29 of the Act without any ingredients of the said provision being present, as per the principles laid down by this Court in Mushaque Ahammed @ Muthu and Another v. Sub Inspector of Police, Malappuram and Another [2020 KHC 310]. Pertinently, even though the contraband was stored in zip lock covers (in short ‘covers’) in the garments of the accused 1 and 2, the Detecting Officer, without drawing representative samples from both the covers, mixed the contraband and put them in one cover, in flagrant violation of Section 52-A of the Act and Rules 3, 5, 8, 9 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022, (‘Rules’, for short), and it was this single cover that was produced before the learned Magistrate, which is evident from Annexure 3 seizure mahazar and the final report (complaint) filed before the jurisdictional Court. Similarly, the Detecting Officer has violated the mandatory procedure prescribed under Section 50 of the Act before conducting the body search of the accused. The petitioner is a 26-year-old differently abled man and the sole breadwinner of his family. The petitioner does not have any criminal antecedents. The petitioner has been in judicial custody since 28.07.2023. The investigation in the case is complete, recovery has been effected, the chemical analysis report has been received and the final report has been laid. Even if the quantity of the contraband is taken as a whole, it is just above the commercial quantity mark. In any case, the petitioner’s continued detention is unnecessary. The learned Counsel also drew the attention of this Court to the decision of the Honourable Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat [(2005 ) 7 SCC 550] and the decisions of this Court in Akhil v. State of Kerala 2023 Ker. 75629 and Ratheesh M.R. v. State of Kerala [2023 Ker. 43583] to support his contentions. He prayed that the petitioner may be enlarged on bail.

5. The learned Public Prosecutor strenuously opp