Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 172

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
RIYAS S/O MUHAMMED KUNJI – Petitioner
Versus
STATE OF KERALA – Respondent
Bail Application No. 939 of 2023
Decided On : 08-03-2023

Advocates:
Advocate Appeared:
For the Petitioners: P. MOHAMED SABAH, LIBIN STANLEY, SAIPOOJA, SADIK ISMAYIL, R. GAYATHRI, M. MAHIN HAMZA, SRINATH C.V.
For the Respondent: T.V. NEEMA.

Point of Law: Expression ‘reasonable grounds’ means something more than prima facie grounds.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 22(c), 20(b)(ii)(A), 37, 42(1), 50 - Bail application - Offences to be cognizable and non-bailable - Search and seizure - Recovery of 49.430 gm of MDMA - Whether there is non compliance of Section 42(1) of the NDPS Act - It is settled law that compliance of Section 50 is not mandatory in relation to search other than body search.
Findings of the Court:
On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients - While granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail.
Result: Bail Application stands dismissed.

ORDER :

1. This is an application for regular bail, filed by the sole accused in Crime No. 747/2022 of Bakel Police Station.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3. I have perused the relevant documents.

4. The prosecution case is that, on the basis of a reliable information, search was conducted at Room No. 301 of Sreego Resort near Bakel Fort, doubting possession of Narcotic Drugs and Psychotropic Substances, by the accused. On search, 25.33 gm of MDMA and 6.380 gm of Hashish Oil, were recovered from the bag kept at the room of the accused. Subsequently, his body search was conducted and 49.430 gm of MDMA was recovered on body search. On this premise, crime, alleging commission of offences punishable under Sections 22(c) and 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’ hereinafter) was registered and the same is on investigation.

5. The learned counsel for the petitioner pointed out two anomalies in the matter of recovery alleged to be effected by the Investigating Officer. The first point argued is that, though the search was on the basis of prior information, the same is not properly recorded in writing, as mandated under Section 42(1) of the NDPS Act and mere General Diary entry is available in this regard. According to the learned counsel for the petitioner, General Diary entry is insufficient, to comply the mandate of Section 42(1) of the NDPS Act. Second point argued is that, in this case, body search also was conducted in relation to the petitioner, without complying Section 50 of the NDPS Act and therefore, the said search is vitiated. Accordingly, the learned counsel for the petitioner pressed for relief of regular bail, on the submission that Section 37 of the NDPS Act has no application, prima-facie.

6. The learned Public Prosecutor opposed the first contention stating that, the prior information, received has been put it into writing by the Investigating Officer in the General Diary and Section 42(1) does not provide any specific form otherwise. Therefore, non compliance of Section 42(1) pointed out by the learned counsel for the petitioner, is of no avail. However, the learned Public Prosecutor also could not justify body search of the accused, since nothing stated in the recovery mahazar regarding compliance of Section 50.

7. While addressing two contentions raised by the learned counsel for the petitioner, the first point to be considered is as to whether there is non compliance of Section 42(1) of the NDPS Act. On perusing Section 42(1), an authorized officer referred in Section 42(1), if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or any psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed, can enter into and search any building, conveyance or place. Section 42(1) provides two situations. The first situation is the personal knowledge of the officer. The second situation is based on an information given by any other person. If the information is given by any other person, the same shall be taken down in writing. In the case at hand, the report of the Investigating Officer would go to show that he had recorded the information in General Diary, in writing, and based on the same, search was conducted. In fact, Section 42(1) does not provide the manner, in which, the information shall be taken down in writing. If so, if an information of such nature taken down in writing in the General Diary before proceeding for search, to be held as compliance of Section 42(1) and it is not safe to hold that, an information taken down in writing in the General Diary, shall not suffice compliance of Section 42. Therefore, this challenge cannot be sustained.

8. Regarding the second point urged by the learned counsel for the petitioner that non compliance of Section 50 of the