IMPORTANT POINT
The bail court need not examine violations of mandatory provisions of the NDPS Act at the bail stage, focusing instead on FIR and seizure records.

ORDER :

The short point to be decided in this case is that, whether the bail court should scrupulously consider to find out the violation of the mandatory provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

2. The petitioner is the 5^th accused in Crime No. 911/2024 of Wadakkanchery Police Station, Thrissur. The above case is registered against the petitioner and others alleging offences punishable under Sections 20(b)(ii)(C) and 29 of the NDPS Act.

3. The Prosecution case is that on 05.12.2024 at 10:50 p.m., the police party led by the Sub Inspector of Police, Wadakkanchery Police Station was conducting vehicle checking along the Wadakkanchery-Kunnamkulam Public Road. At that time, a pick-up van bearing Registration No. TN-29CW-6229 came from the Wadakkanchery side and the driver of the said pickup van stopped the vehicle before the police party, when the Sub Inspector showed a signal to stop the vehicle. It is further alleged that while the said vehicle was stopped and on seeing the police party, two persons travelling in the carriage body of the said pickup van ran away. On questioning the driver and two others travelling in the cabin of the said pickup van, as to why the said two persons travelling in the carriage body had fled upon seeing the police, they got perplexed and told that they did not know the reason. Accordingly, the Sub-Inspector of Police inspected the carriage body of the said pickup van and found two bikes bearing Registration Nos. KL-48P-2034 and KL-49K-9669. They also saw travel bags covered with plastic sheets. It is further alleged that on removing the plastic sheets, a severe smell of ganja was emanating from the travel bags. Accordingly, the Sub Inspector of Police opened the said travel bag in the presence of witnesses present there and found that the said travel bags contained ganja. It is further alleged that, after recording the arrest of accused No. 1 to 3, a personal search was conducted in the presence of Gazetted Officer and recovered money and mobile phones. It is alleged that 83.83 Kilograms of ganja were recovered. Hence it is alleged that the accused committed the offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act. Annexure A1 is the First Information Report (FIR) registered as Crime No.911/2024 by the Wadakkanchery Police. The petitioner, who is the 5^th accused was arrested on 18.12.2024, and he has been in custody from that date onward.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. Counsel appearing for the petitioner submitted that the 5^th accused is innocent and he was falsely implicated in this case. The counsel also submitted that the alleged seizure of the contraband article is illegal and the police have not complied with the mandatory provisions under Sections 42 and 50 of the NDPS Act. According to the counsel, a perusal of Annexure A1 FIR would show that the Detecting Officer noticed through smell that the travel bags contained ganja. Thus, before opening the alleged travel bags itself, the Detecting Officer noticed that the alleged travel bags contained ganja. Hence, the Sub Inspector of Police, who received such knowledge should have taken down that information in writing under Sub-Section 1 of Section 42 of the NDPS Act, and he should have forthwith sent a copy thereof to his immediate superior officer. It is also submitted that the Detecting Sub-Inspector of Police is not authorised under Section 42(1) of the NDPS Act to conduct search, between sunset and sunrise without recording his grounds for belief under Second Proviso of Section 42 of the NDPS Act. Since there is a violation of mandatory provisions, the prosecution case will not be sustained. Therefore, for that simple reason, the petitioner is entitled to bail, is the submission.

6. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that it is a chance recovery and hence, there is no question of compliance with