This application is filed under S.439 of the Code of Criminal Procedure.

2. The applicant herein is the 2nd accused in Crime No.20 of 2018 of the Nadakkavu Police Station. In the said Crime, he along with the 1st accused are accused of having committed offence under S.20(b)(ii)(A) and S.22(c) r/w S.29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The prosecution case is that the Sub Inspector of Police along with his party were on patrol duty on 5.1.2018. At about 1 p.m., they reached R.P.Mall, which is situated on the northern side of the Kozhikode - Mavoor road. In the parking ground of R.P.Mall, they found two persons sitting near to the compound wall and they were found engaged in packing some substance in small packets. On seeing the police personnel, they made an attempt to flee. They were immediately intercepted. The 1st accused was asked to what was in his pocket. He did not respond and he appeared perplexed. Immediately thereafter, the Sub Inspector is alleged to have conducted a body search. From the back pocket of the jeans, which was worn by the 1st accused, some cash, an ATM card, a brown packet containing some substance and 17 LSD Stamps were allegedly seized. Immediately thereafter, he ventured to search the applicant. From the back pocket of the jeans of the applicant, some cash, ID cards, three plastic covers containing some substance and an open packet containing some brown substance were seized. At about 2 p.m., their arrest was recorded in the presence of witnesses. The contraband was weighed using an electronic balance, which was available in the investigator’s kit. From the 1st accused, the contraband seized was 0.210 gms of LSD and 8.8 gms of Hashish. The contraband seized from the applicant was weighed and it was found to be 2.890 gms of Hashish. The articles were sampled and sealed and a mahazar was also drawn up. Later the Crime was registered.

4. The learned counsel appearing for the applicant submitted that there are no reasonable grounds for believing that the applicant is guilty of the offence. According to the learned counsel, S.50 of the Act has been blatantly violated. If the prosecution version is believed, the police officers had occasion to witness the 1st accused as well as the applicant packing the contraband in small covers. On seeing the police personnel, the applicant as well as the 1st accused had allegedly made attempts to flee from the spot. They were restrained and the body search of the 1st accused was initially conducted. This is in clear violation of S.50 of the Act. The 1st accused was never informed of his right to be searched before a Gazetted Officer or a Magistrate. Without doing that a body search was conducted and LSD stamps were allegedly seized. It was thereafter that the body of the applicant was searched by the detecting officer and small quantity of Hashish was allegedly seized from his trouser pocket. According to the learned counsel, after having seized narcotic substances from the possession of the 1st accused and when the officer made up his mind to search the body of the applicant, he ought to have complied with S.50 of the Act. The violation of the said provision would render the detection and seizure bad under law. Gross prejudice has been caused to the applicant is the submission. To bring home his point, the learned counsel has relied on the decisions of the Apex Court in Sarija Banu Alias Janarthani Alias Janani & Anr. v. State Through Inspector of Police, (2004) 12 SCC 266), State of Punjab v. Balbir Singh,(1994) 3 SCC 299), State of Punjab v. Baldev Singh, AIR 1999 SC 2378), Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609) and Karnail Singh v. State of Haryana (2009) 8 SCC 539). According to the learned counsel, it would result in failure of justice to insist that an accused in custody must wait until such time that the trial of the case is taken up to satisfy the court that there are reasonable grounds for believing t