ORDER

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the sole accused in Crime No.883/2023 of the Thrithala Police Station, Palakkad, which is registered against him for allegedly committing the offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested and remanded to judicial custody on

11.11.2023.

2.The gravamen of the prosecution case is that: on 11.11.2023, at around 16.00 hours, in a search conducted by the Detecting Officer and party, 301.180 grams of MDMA and Rs.4,82,700/-were seized from the residence of the accused. The said amount is suspected to be the proceeds of the crime.

Thus, the accused has committed the above offence.

3.Heard; Sri. Mohamed Sabah, the learned counsel appearing for the petitioner and Smt.Pushpalatha M.K., the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations leveled against him. There is no material to substantiate the petitioner’s involvement in the case. The Investigating Officer has violated Sections 42, 50 and 52A of the Act. Moreover, no grounds of arrest were recorded in the remand application as per the mandate laid down by the Honourable Supreme Court in Prabir Purkayastha v. State (NCT) of Delhi [2024 Supreme (SC) 463]. The petitioner has been in judicial custody for the last nearly one year, the investigation in the case is complete and the complaint has been laid. Furthermore, the Investigating Officer had not forwarded the samples as contemplated under the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling, and Disposal) Rules, 2022 (in short, Rules). The learned Magistrate also failed to forward the samples directly to the laboratory, instead sent them to the Special Court. The inventory was not prepared as per the form prescribed under the Rules. The petitioner does not have any criminal antecedents.

Hence, the application may be allowed.

5. The learned Public Prosecutor stoutly opposed the application. She handed over the remand report and stated that the learned Magistrate has categorically recorded the grounds of arrest on the report. The question whether there is any infraction of Sections 42, 50, 52A of the Act are matters to be decided at the time of trial as laid down by the Honurable Supreme Court in Union of India v. MD Nawaz Khan [2021KHC 6503] and the decision of this Court in Abeesh v. State of Kerala [2022:KER:50902]. The contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. The application is meritless and is only to be dismissed.

6. In view of the specific assertion that there was no grounds of arrest recorded at the time of remand of the petitioner, this Court had called for a report from the Additional Sessions Judge-II, Palakkad, to ascertain as to whether the grounds of arrest were recorded in the remand application.

7. Pursuant to the said order, the learned Session Judge, by communication dated 30.07.2024, has reported that the petitioner was produced before the Judicial First Class Magistrate Court, Chittur, who was in charge of Judicial First Class Magistrate, Pattambi on 12.11.2023, who had passed the following order on the remand application, which reads thus:- "Accused whose signature is obtained above is produced before me at 06.55 pm on 12.11.2023. He has no allegation of ill-treatment by the police. As per the latest G.O, investigating officer was present and he explained the circumstances which lead him to produce the accused after 5.00 p.m. He was seen given legal aid by a counsel as per protocol for easy access to justice and his arrest is seen informed to Taluk Legal Services Authority. He was informed about his right to be represented by a lawyer of his own choice. The offence alleged against the accused is under secti