IMPORTANT POINTS
The detection of the offence, seizure of contraband and the investigation in the case on hand were conducted by the S.I of Police, East Police Station and therefore, the investigation held cannot be treated as a fair one. Reliance is placed on Mohan Lal Vs. The State of Punjab [2018 (4) KHC 387 (SC)]' in support of the argument advanced. The third argument advanced was that recovery of ganja was based on the revelation about possession of ganja by the petitioner himself, and therefore is hit by Article 20 of the Constitution of India.

ORDER :

In the petition on hand the chargesheet and all further proceedings initiated on the basis of C.C No.567/2018 registered and pending on the files of Judicial First Class Magistrate Court-II, Kollam is sought to be quashed. Petitioner is the sole accused in C.C No.567/2018. Copy of chargesheet is appended to the petition on hand as Annexure-2 and the offences alleged against the petitioner therein are those punishable under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act').

2. The case of the prosecution was that, at 18.30 hrs on 4.4.2012 during the course of vehicle inspection at a road situated in front of Udaya Club, Asramcheri, Kollam East Village, 12.03 gms of dried Ganja was recovered from the pocket of the shirt worn by the accused who was driving an Innova Car bearing registration No.KL 37-1748, by the S.I of Police, Kollam East Police Station. The contraband was recovered after ascertaining from the person that he is not having any authority to possess the same. It is the case of the prosecution that prior to the conduct of the search, the accused has stated to the Police party that he doesn't require his body search to be held in the presence of a Gazetted Officer or Magistrate. After the seizure, the contraband alongwith the accused were taken to the Kollam East Police Station and Crime No.603/2012 was registered. The contraband as well as the accused were produced before the Judicial First Class Magistrate Court-II, Kollam. After holding the Investigation and on concluding the same Annexure-2 final report was laid chargesheeting the accused for the offence aforesaid. The final report was taken on file by the court aforesaid and C.C No.567/2018 was registered.

3. Sri.Shabu Sreedharan, the learned counsel for the petitioner has contended that Section 50 of NDPS Act was not complied with by the S.I of Police, Kollam, who has recovered the contraband, allegedly kept in the pocket of the shirt worn by the accused prior to holding the body search of the person. According to him, the seizure of contraband, cannot be taken as a legal one due to violation of a mandatory requirement contemplated by the NDPS Act and consequently, there is every likelihood for the trial proposed to be held against the petitioner to end in acquittal.

4. The learned counsel has also urged that the detection of the offence, seizure of contraband and the investigation in the case on hand were conducted by the S.I of Police, East Police Station and therefore, the investigation held cannot be treated as a fair one. Reliance is placed on Mohan Lal Vs. The State of Punjab [2018 (4) KHC 387 (SC)]' in support of the argument advanced. The third argument advanced was that recovery of ganja was based on the revelation about possession of ganja by the petitioner himself, and therefore is hit by Article 20 of the Constitution of India.

5. The learned Public Prosecutor did not advance any argument.

6. In that context, this Court ventured to see the merits in the arguments advanced by the learned counsel for petitioner as aforestated. Sub Section (1) of Section 50 being relevant in the context is reproduced hereunder:

“When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.”

7. Copies of relevant materials pertaining to the case, are made available to this Court by the petitioner himself. The first information statement, seizure mahazar and final report have been perused to see whether the argument that Section 50 of the NDPS Act was not complied with is a meritorious one. The Seizure Mahazar is a contemporaneous document to evidence the manner in which seizure was held. The relevant part is extracted hereunder:

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