Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
NITHIN – Petitioner
Versus
STATE OF KERALA – Respondent
Bail Application No. 946 of 2023
Decided On : 10-03-2023
Narcotic Drugs and Psychotropic Substances Act, 1885 - Sections 22(b), 8(C), 50 - Bail application - Search and seizure - Recovery of 0.9 gram of MDMA - Whether C.I. of police or any other gazetted officer working in Police Department, in any way, either disqualified or incompetent to be a gazetted officer for the purpose of Section 50 of NDPS Act - Section 50 imbibes presence of gazetted officer or a Magistrate at time of body search of an accused or a suspect and it is not safe to hold that a police officer being a gazette officer is either disqualified or incompetent to witness a search in terms of Section 50 of NDPS Act.
Findings of the Court:
0.9 gram of MDMA was seized from the accused same is intermediate quantity. There is no rider in the form of Section 37 of NDPS Act in this matter. However, aggravating factors are the involvement of the petitioner in 14 crimes prior to this occurrence. Out of which, 3 are under Section 27(b) of the NDPS Act, but many of the antecedents are pertaining to minor offences, to be foreseeable from the list extracted herein above. Adverting to the facts discussed, noting the progress of investigation and custody of the petitioner, by imposing stringent conditions, the petitioner can be enlarged on bail and one amount conditions is that the petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice f this Court, the same alone shall be a reason to cancel the bail hereby granted.
Result: Petition stands allowed.
ORDER :
1. This is an application for regular bail filed by the sole accused in Crime No. 788/2022 of Kannamali Police Station, where he alleged to have committed offences punishable under Sections 22(b) and 8(C) of the Narcotic Drugs and Psychotropic Substances Act (‘NDPS Act’ for short hereinafter).
2. The prosecution allegation is that at about 5.30 p.m. on 17.12.2022 the accused was found in possession of 0.9 gram of MDMA for the purpose of sale against the prohibition contained in the NDPS Act and accordingly he was nabbed and contraband was taken into custody. Pursuant to recovery, crime alleging commission of the above offences was registered.
3. While pressing for grant of regular bail, the learned counsel for the petitioner highlighted the progress of the investigation and custody of the petitioner from 17.12.2022. That apart the learned counsel for the petitioner argued that in this matter the mandate of Section 50 of the NDPS Act has been violated. It is specifically pointed out that violation of Section 50 is noticeable on two aspects. The first point argued is that when search was conducted by the C.I. of Police as part of the investigation/detection, a police officer holding the rank of C.I. though he is a gazetted officer was present, and such an officer is not a competent gazetted officer to witness search since the same would offend the mandate of Section 50 of the NDPS Act.
4. In addition to that, the learned counsel for the petitioner argued secondly that as per the mandate of Section 50, it is necessary for the empowered officer to inform the right of the person to be searched before a gazetted officer or a Magistrate and if he so requires, he shall be taken before a gazetted officer or a Magistrate for search, and if he so opts, failure to conduct his search before a gazetted officer or Magistrate, that may not vitiate the trial but would render the recovery of illicit suspect and vitiate conviction and sentence of the accused.
5. Whereas the learned Public Prosecutor zealously opposed bail highlighting the stature of the petitioner as a habitual offender having involvement in multiple crimes, inclusive of 3 crimes under the NDPS Act. The learned Public Prosecutor would submit that if the petitioner will be released on bail, he would repeat the same offences. It is submitted further that a gazetted officer working in the police department is also a competent gazetted officer within the sweep of Section 50 of the NDPS Act. That apart, there is no mandate in law that search of the person shall be by taking the accused before the gazetted officer and the same can be in the converse also. Therefore, the petitioner doesn't deserve bail and he shall be kept in custody till the trial is over.
6. The following are the crimes where the involvement of the petitioner has been pointed out by the learned Public Prosecutor:
(2) Crime 2017/2021 u/s 151 Cr.P.C.
(3) Crime 363/2022 u/s 151 Cr.P.C.
(4) Crime 1038/2017 u/s 279 IPC and 185 of MV Act.
(5) Crime 1000/2022 u/s 27(b) of NDPS Act.
(6) Crime 320/2021 u/s 27(b) of NDPS Act.
(7) Crime 858/2017 u/s 118(e) of KP Act 2011.
(8) Crime 938/2017 u/s 323, 324, 294(b), 34 IPC.
(9) Crime 1524/2021 u/s 452, 427, 294(b), 506, 143, 147, 148, 149 IPC.
(10) Crime 1521/2021 u/s 143, 147, 294(b), 506 IPC and 4(i), (3) of Kerala Healthcare Institution (Prevention and Violence and Damage Act.
(11) Crime 371/2021 u/s 27(b) of NDPS Act.
(12) Crime 1495/18 u/s 279 IPC and 185 of M.V. Act.
(13) Crime 412/2019 u/s 118 (e) of KP Act and 184 of M.V. Act (14) KEDO Act and 118(a) of KP Act.
7. In view of the rival arguments, three vital questions emerge for consideration as under:
(ii) A gazetted officer, who is part of the detecting or investigating team can be a competent gazette
Any police officer being a gazetted officer is a qualified and competent gazetted officer for search of a person as stipulated in Section 50 of the NDPS Act.
Expression ‘reasonable grounds’ means something more than prima facie grounds.
Point of law : Bail cannot be granted on the ground of technicality and non-compliance of formalities cannot be considered during the bail stage.
Point of Law- It is pertinent to note that in the bail application the appellants, it was alleged, that there was serious violation of Section 42 of the NDPS Act. In the impugned order nothing is sta....
Point of Law : It is pertinent to note that in the bail application the appellants, it was alleged, that there was serious violation of Section 42 of the NDPS Act. In the impugned order nothing is st....
Point of law: Recovery of contraband – Rejection of bail - contraband article is more than the commercial quantity and the investigation is still pending
The court affirmed the compliance with Section 50 of the NDPS Act, ruling that procedural irregularities did not justify bail due to serious charges against the petitioner.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
