Important Points:
• The court's satisfaction within the meaning of sub-section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 235 of the Cr.P.C.-
• There are reasonable grounds for believing that the accused is not guilty as to be arrived at before the conclusion of trial, i.e., at any stage of investigation or in the course of trial itself-This Court cannot abdicate from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded-There are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction.

These applications are filed under Section 439 of the Cr.P.C.

2. The applicants herein are the accused Nos.1 and 2 in Crime No. 35 of 2018 of the Excise Range Office, Peermade, registered under Sections 22(c), 8(c), 20(b)(ii)A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'NDPS Act'). They were arrested in connection with the aforesaid crime on 9.10.2018.

3. The brief facts, which led to the registration of the above crime, can be recapitulated as follows :-

On 9.10.2018, the Excise Inspector, Excise Range Office, Peermade, was engaged in the inspection of vehicles plying along the Vagamon-Irattupetta road. A Hyundai Creta car bearing Registration No.KL-42 N-9333 driven by two young men were intercepted. The 1st accused was driving the vehicle and the 2nd accused was sitting in the front passenger seat. A search of the cabin of the vehicle was conducted in the presence of two independent witnesses. When the detecting officer opened the dash board of the car, two small plastic covers were found inside along with records relating to the vehicle. The covers were opened and it was found that it contained narcotic substances. One cover contained ganja and the other contained charas. He then decided to conduct search of the person under Section 50 of the NDPS Act. Separate notices were served purportedly at 3.45 p.m. informing them of their right to be searched in front of a Gazetted officer. The Circle Inspector of Excise, Peermedu, who was on patrol duty came to the spot and he was requested to witness the search. In his presence, a search of the body of the 1st accused was conducted. From his rear trouser pocket, a purse was seized and on examination, along with other items, 23 numbers of LSD stamps were found. The same was seized as per law. Thereafter, a search of the person of the 2nd accused was carried out after serving him with a notice under Section 50 of the Act. From a purse kept in the rear trouser pocket, 29 numbers of LSD stamps were allegedly seized. An officer was sent to a nearby Jewelry and a weighing balance was brought to the spot. The contraband articles were weighed. The accused were identified and their arrest was recorded. The crime and occurrence report was prepared and it was forwarded to the jurisdictional court. The accused were remanded and they remain in custody.

4. Sri. Nireesh Mathew, the learned counsel appearing for the 1st accused contended that the detection, seizure, arrest and investigation are tainted and no reliance can be placed on the prosecution records. According to the learned counsel, the very prosecution records would reveal that the accused were framed in the instant case by manipulating the records. It is further submitted that the detection was vitiated for various reasons and it is evident that a conscious effort was taken by the officer concerned to manipulate the various contemporaneous documents that were prepared by him at the time of detection and seizure.

5. The learned counsel would refer to the mahazar dated9.10.2018, which was prepared contemporaneously with the seizure, and pointed out that the said mahazar was prepared at 5.00 pm. He would refer to the descriptions in the mahazar and contended that it was after the alleged detection of ganja and charas from the dashboard of the car that the officer has decided to conduct a personal body search of the accused as contemplated under Section 50 of the NDPS Act. He would then refer to Annexure-A notice produced by him and contended that even in the notice issued under Section 50 of the Act, purportedly at 3.45 p.m, informing the accused of their right to be searched in front of the Gazetted officer, it has been mentioned that 23LSD stamps have already been seized from the possession of the accused. This would show that the issuance of notice was a farce and that the alleged contraband had been seized even before the Gazetted officer was brought to the spot. The learned counsel would th