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2020 Supreme(Ker) 966
KERALA HIGH COURT
SINGLE BENCH
Shircy V., J.
ASARAF ALI SAMSUDEEN — Appellant
Vs.
THE NARCOTIC CONTROL BUREAU — Respondent
Bail Appl. No.1051 of 2020
Decided on : 06-03-2020
Sri.D.G.Vipin Sri.Karol Mathews Sebastian Alencherry for the Appellant; SRI.MVS.NAMBOOTHIRY for the Respondent
Strict compliance with the statutory provisions of the NDPS Act is essential, and the limitations on granting bail apply when the contraband involved is of commercial quantity.
Headnote:
NDPS Act - Regular Bail - Sections 8(c), 22(c), 23(c), 28, and 29 - The court discussed the provisions of the NDPS Act related to arrest, search, and seizure, emphasizing the requirement for strict compliance with the statutory provisions and the limitations on granting bail when the contraband involved is of commercial quantity. The court also referred to relevant case laws to support its decision.
Fact of the Case:
The 1st accused filed an application for regular bail in a case registered under the NDPS Act for possession of narcotic drugs. The prosecution alleged that the accused was found in possession of methamphetamine concealed in his undergarment at the airport, and the accused sought bail claiming innocence and non-compliance with statutory formalities.
Finding of the Court:
The court found that the contraband seized from the accused was of commercial quantity and emphasized the need for strict compliance with the NDPS Act provisions. It concluded that the accused was not entitled to bail based on the available materials and the possibility of committing similar offenses if released.
Issues: The issues involved the compliance with statutory formalities, the entitlement to bail under the NDPS Act, and the possibility of the accused committing similar offenses if released on bail.
Ratio Decidendi: The court's decision was based on the lack of reasonable grounds to believe the accused was innocent, the stringent provisions of the NDPS Act, and the limitations on granting bail when the contraband involved is of commercial quantity.
Final Decision: The court denied the application for regular bail, citing the stringent conditions imposed by the NDPS Act and the potential risk of the accused committing similar offenses if released on bail.
ORDER
1. This application is for regular bail filed by the 1st accused in O.R. No. 1051 of 2019 of Narcotic Control Bureau, Aluva registered for the offences punishable under Sections 8(c) read with Sections 22 (c), 23 (c), 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act ('NDPS Act' for short).
2. The crux of the prosecution case is as follows:
On 06.10.2019 at about 22.40 hours, an intimation was sent from the CISF Control Room in Cochin International Airport to the Narcotics Control Bureau ('NCB' for short) that a passenger who was about to board to Air Asia Airways to Kolalambur was found in possession of some suspicious items akin to methamphetamine, a psychotropic substance coming under the NDPS Act concealed in his undergarment and on receipt of the intimation, the NCB officials, reached the Airport and search was conducted and the contraband was seized from the petitioner. Two other passengers, i. e the 2nd and the 3rd accused, who boarded in the aircraft to Doha were made to deboard from the flight and from them also narcotic item were seized. Since, contraband was seized from the petitioner, he was apprehended along with the other two passengers by NCB and the case has been registered.
3. This petitioner has been in custody since then and hence this application for his release on bail.
4. The learned counsel for the petitioner contended that this petitioner has been illegally made as an accused in the case, in fact he is totally innocent of the allegations levelled against him. It is argued by the learned counsel for the petitioner that as per the mahazar prepared by the NCB officers, they reached the Security Hold Area of the Airport after seizure was effected. What had actually transpired in the Airport prior to the arrival of the NCB officers is not known. It appears that the NCB officials had acted in accordance with the directions of the CISF personnel and the formalities and the procedures contemplated under the NDPS Act for registering a crime have not been complied with. The CISF personnel are not empowered officers to conducts each and hence, it is clear that the safeguards provided under Section 50 of the NDPS Act have not been complied with. Therefore, this petitioner is entitled for his release on bail is the argument of the learned counsel for the petitioner.
5. Per contra, the learned Public Prosecutor strenuously opposed the application contending that all the safeguards provided under the Act were complied with by the NCB officials and they reached the office on receiving information from CISF officials and when they reached the Airport, the petitioner and the other accused were handed over with the contraband seized in routine security frisking. The contraband was in two packets each stitched inside the underwear of the petitioner as well the other accused. So, after complying with the formalities, section 50 notice was issued and the items were seized from them. It is further contended that the formalities required for arrest and seizure were complied with and the petitioner was found in possession of narcotic drug while he tried to transport the same to Kolalambur. So, prima facie there are reasonable grounds to conclude that he is guilty of the offence and if he is released, there is every possibility to repeat similar offence.
6. Heard Adv. Vipin D.G, the learned counsel for the petitioner and Sri. M.V.S. Namboodiri, the learned Standing Counsel.
7. The records prima facie available would show that the contraband seized from the petitioner is of commercial quantity. The question to be looked into in this petition is whether the petitioner is entitled to be released on bail at this stage when the investigation is proceeding in full swing. No doubt, bail can be granted only on fulfilment of two conditions i.e. where there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. Therefore, if the twin co
