ORDER :

1. This is an application for regular bail.

2. The petitioner is accused No. 2 in Crime No. 392/2022 of Infopark Police Station, Ernakulam District, alleging commission of offence punishable under Section 22(c), 29 and 8(c) of Narcotic Drugs Psychotropic Substances (NDPS) Act, 1985.

3. The prosecution allegation is that, on 18.05.2022 at about 5.30 p.m. 26.34 gm of MDMA has seized from the possession of the 1st accused, from Apartment No. 204 of SAJ ANNEX, Kakkanad which was taken on rent by the 2nd and 3rd accused. It is alleged that the 2nd and 3rd accused aided the 1st accused.

4. It is the contention of the petitioner that he has been falsely implicated in the said crime. In fact marriage between the petitioner as well as the 3rd accused is fixed and they are college-mates and are intending to get married. The 1st accused is the friend of the petitioner who was temporarily staying with the 2nd and 3rd accused while in search of a job. The allegations against the petitioner is not correct. The 1st accused was arrested by the shadow Police and they came to the rental house of the petitioner and seized MDMA from the 1st accused. Thereafter, arrest was recorded and the petitioner was remanded to judicial custody from 19.05.2022 onwards. Petitioner further submits that he has absolutely no involvement in the alleged crime. The petitioner specifically contended that the parameters for search and seizure as laid down as per the provisions of the NDPS Act was not followed. His specific case is that the investigation team reached the alleged place of occurrence at about 5.30 pm. It is the prosecution case that the investigating officer sought the assistance of a gazetted officer and the said officer came from the Ambalamedu Police Station at about 5.55 pm. The request was made at about 5.30 pm. The contention of the petitioner is that no search was made in the presence of the gazetted officer. It is the admitted case of the prosecution that no recovery was made from the petitioner herein. He was arrayed as an accused only on the ground that the alleged apartment was taken by the petitioner and the 3rd accused on rent.

5. When the matter was taken up for consideration, the learned counsel for the petitioner submitted that there is clear violation of the mandate of Section 50 of the NDPS Act and therefore, the search and seizure effected is absolutely illegal. It is submitted by the petitioner that while the investigating officer was on station duty, he got an information on 16.55 hrs by an unknown person that Narcotic drug (MDMA) is kept for sale in flat No. 204 of Saj Annex in Palal Road, Kuzhickattumoola, Kakkanad, Near Link Valley flat and on getting said information, the factum of the information was entered in the GD and after preparing a notice as contemplated under Section 42 of the NDPS Act and after sending a search memorandum to the Judicial First Class Magistrate, Kakkanad, the investigating officer along with the police party along with witnesses, reached the front portion of the said studio apartment No. 204 at about 11.30 and on ringing the calling bell of the said flat, one person came out and he was informed by the investigating officer that he is the Sub-Inspector of the Infopark police station and he came on an information that narcotic drug is kept in the said flat and that in the said room the investigating officer found two other persons also. When questioned, they replied their name and address and they are by name 1. Sanal, 2. Abhimanu and 3. Amrutha. They were informed by the investigating officer that they are entitled for being search in the presence of a gazetted officer or a magistrate and if they require, they can avail the mandate of the provision and they intimated that they can be searched in the present of a gazetted officer. Thereafter, the investigating officer contacted the Ernakulam Excise Office and he was intimated that no gazetted officers were available there. He thereupon called the Inspe