IMPORTANT POINT
The court emphasized the mandatory satisfaction of the twin conditions provided in Section 37(1)(b) of the NDPS Act for granting bail.

ORDER :

1. This is an application for regular bail filed by accused No. 2 in Crime No. 911/2022 of Pudukkad Police Station, Thrissur.

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

3. I have perused the relevant documents form part of the case diary produced by the learned Public Prosecutor and the report of the Investigating Officer.

4. The prosecution allegation is that, at about 3:31 hrs. on 11.10.2022, based on a secret information received to the effect that, the 1st accused was transporting contraband in a car, bearing Registration No. KL-08/N-4843, after recording the said information in the general diary in writing, the Sub Inspector and party stood at the relevant place and intercepted the car. When the driver of the car was questioned, he had given inconsistent answers and thereafter, he was personally searched, after complying Section 50 of the NDPS Act and thereby, 21.05 Kgs of Ganja was seized. Accordingly, crime was registered alleging commission of the above offences. Subsequent to the arrest of the 1st accused, Satheesan, accused Nos.2 and 3 were incorporated in this crime and thereby prosecution alleges commission of offences punishable under Sections 20(b)(ii) C, 27A and 29 of the NDPS Act.

5. The learned counsel for the petitioner zealously argued to canvass regular bail to the 2nd accused mainly on two grounds. It is submitted that, in this matter search was conducted in between `sunset and sunrise’ violating the mandate of second proviso to Section 42(1) of the NDPS Act. In this connection, the learned counsel referred paragraph 15 of the order in B.A. No. 1197/2023 dated 22.03.2023 whereby this Court dismissed the bail application of the 1st accused. In paragraph 15 of the above order, it was found relying on [Boota Singh and Others vs. State of Haryana, 2021 KHC 6240] that second proviso to Section 2(1) of the NDPS Act has been violated. But this Court dismissed the bail plea at the instance of the 1st accused observing in paragraph 16 as under:

“16. Even though the learned Public Prosecutor attempted to treat the vehicle, from which the contraband was seized would come within the meaning, ‘public vehicle’ dealt with under Section 43 of the NDPS Act, the available materials do not justify such contention. At this juncture, the learned Public Prosecutor given emphasis to the decision of the Apex Court, reported in Union of India through NCB, Lucknow vs. Md. Navaz Khan, 2021 (10) SCC 100 to contend that at the time of grant of bail, the question as regards compliance or non-compliance of Section 42 of the Act is not strictly required to be gone into, as the same is a matter, which would best to be left adjudicated at the time of trial. According to the learned Public Prosecutor, since non-compliance regarding Section 42 in so far as 2nd proviso, the same shall be relegated to the trial court to decide the same on merits during evidence and merely because of noncompliance of 2nd proviso to Section 42(1) of the NDPS Act, the rigour under Section 37 of the NDPS Act, cannot either be diluted or to be given a go-by to grant bail since compliance of Section 37 is mandatory in nature as held by the Apex Court in a catena of decisions.”

6. The learned Public Prosecutor also submitted that in the decisions reported in State of Punjab vs. Balbir Singh and Union of India through NCB, Lucknow vs. Md. Navaz Khan (supra) also the Apex Court held that those aspects to be considered during trail.

7. The second point argued by the learned counsel for the petitioner is relying on an order of a coordinate Bench of this Court in B.A. No. 66 of 2024 dated 27.02.2024. It is pointed out by the learned counsel for the petitioner that in this order the learned Single Judge of this Court after referring Rules 3 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022, which came into effect from 23.12.2022 and after referring the decision in Un