IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 16^TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 BAIL APPL. NO. 1990 OF 2023 CRIME NO.50/2022 OF KOZHIKODE EXCISE RANGE OFFICE, KOZHIKODE PETITIONER/ACCUSED SALMAN FARIS AGED 25 YEARS S/O USMAN KOYA, KUNNATH PARAMBIL HOUSE, KOLATHARE P.O, CHERUVANNUR, KOZHIKODE DISTRICT, PIN - 673027 BY ADVS.

P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA SRINATH C.V. ALWIN JOSEPH RESPONDENT/STATE & COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

2 THE EXCISE CIRCLE INSPECTOR EXCISE RANGE OFFICE, KOZHIKODE, KOZHIKODE DISTRICT, PIN -

673001 BY ADV PUBLIC PROSECUTOR OTHER PRESENT:

SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O R D E R

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.50/2022 of the Excise Range Office, Kozhikode, registered against him for allegedly committing the offences punishable under Sections 22(c) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 21.11.2022. 2. The crux of the prosecution case is that, on

21.11.2022 at around 13.35 hours, the accused was found in conscious possession of 3.25 grams of LSD, 10 grams of MDMA and 5 gram of ganja which he was found transporting on his motorcycle bearing Reg.No.KL 11 AB 1888 through the Aravindghosh road, Kozhikode. Thus, the accused has committed the above offences.

3. Heard Sri.P.Mohamed Sabah, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor appearing for the respondents. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 21.11.2022, which is more than 1½ years. The investigation in the case is complete and the final report has been laid. The petitioner's further detention is not necessary. In addition to the above contentions, there is a total violation of the mandatory procedural requirements under Sections 42 and 50 of the Act. There is no materials on record, even in the final report, to substantiate that the Investigating Officer had taken down in writing the information received by him to arrest the petitioner as provided under Section 42 of the Act or to conduct the search on the petitioner's body in the presence of a gazetted officer or the nearest Magistrate as provided under Section 50 of the Act. Therefore, the search and seizure are vitiated, and the petitioner is entitled to be released on bail as laid down by the Hon'ble Supreme Court in Sarija Banu Alias Janarthani Alias Janani and another v. State through Inspector of Police [(2004) 12 SCC 266] and the decision of this Court in Majeed C.P. v. State of Kerala & Anr. (B.A.No.6908 of 2023). Therefore, it is only to be presumed that the petitioner has not committed the alleged offences. Moreover, the petitioner has no criminal antecedents. Therefore, the rigour under Section 37 of the Act stands diluted. Hence, the petitioner may be released on bail.

5. The learned Public Prosecutor vehemently opposed the application. He contended that there is total compliance with Sections 42 and 50 of the Act. The petitioner was apprehended during a joint-combing operation that has been conducted by the Excise Circle Inspector with the State Excise Enforcement Squad. It was on inspecting the petitioner's motorcycle that they found that the petitioner was in possession of the contraband articles. The information in writing to arrest the petitioner has been recorded and produced with the final report. He drew the attention of this Court to page 14 of the final report produced as Annexure