Procedural compliance in narcotics seizure is mandatory; failure to adhere can prejudice the accused's rights, justifying bail.

The petitioner, who is the first accused in Crime No.1738/2023 of the Ernakulam Town North Police Station, Ernakulam, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (‘Act’ for brevity), has filed the application under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC). The petitioner was arrested on 26.07.2023.

2. The essence of the prosecution case is that;

on 26.07.2023, the Sub Inspector of Police, Ernakulam Town North Police Station, got secret information from an unknown person that the fourth accused, along with the accused 1 to 3, had taken room No. 215 in Ascot Hotel at SRM Road, Ernakulam, for keeping narcotic drugs. On the basis of the information, the Detecting Officer reduced the information to writing and sent a copy to the Jurisdictional Court, reached the place of occurrence, and conducted the body search of the accused. In the search that was conducted, the following quantities of contraband were seized from the accused: (1) 21.41 gm of MDMA from the first accused, (2) 15.61 gm MDMA from the second accused, (3) 12.5 gm of MDMA from the third accused, and (4) 11.2 gm of MDMA from the fourth accused, that is a total of 60.45 gm of MDMA. The Detecting Officer, after taking the four packets of contraband seized from the four accused, transferred the contraband into a zip-lock cover weighing 1.63 gm. After deducting the weight of the cover, the contraband weighed 58.82 gm of MDMA. Thus, the accused have committed the above offences.

3. Heard; Sri.

K. Mohammed Rafeeq, the learned counsel appearing for the petitioner and Sri.

C.S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondents.

4. The learned counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations leveled against him. The Detecting Officer has deliberately planted the petitioner as an accused in the above crime. The Detecting Officer has flouted the mandatory provisions under Sections 42 and 52A of the Act and also Rules 3, 5, 8, 9 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022, (‘Rules’, for short) by taking the four packets of contraband that were allegedly seized from the bodies of the accused and putting them into one packet, and then weighing the contraband. The act of the Detecting Officer in doing the above exercise is in violation of the above provisions of law and also the decision of the Honourable Supreme Court in Mohammded Khalid and another vs. State of Telengana [2024 KHC 6105] and the decision of this Court in Vaisakh vs. State of Kerala [2024 (2) KHC 446]. He contended that the act of the Detecting Officer in carrying out the above exercise has caused severe prejudice to the petitioner. Therefore, the inventory that has been prepared by the Detecting Officer is a mere scrap of paper. Hence, the petitioner is entitled to be released on bail.

5. The learned Public Prosecutor strenuously opposed the application. He contended that the contraband seized from the accused is of commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. Moreover, since Section 29 of the Act has been incorporated, all the accused are jointly and severely liable for committing the above offence. He also stated that there is no prohibition in law against transferring the contraband from the four packets into one packet as carried out by the Detecting Officer, especially since the contraband is identical in nature. Nonetheless, he conceded to the fact that the chemical analysis report shows that the contraband is Methamphetamine and not MDMA. He placed reliance on the decision of the Honourable Supreme Court in Union of India vs. Md.Navas Khan [2021 KHC 6503] and the decision of this Court in Abeesh vs. State of Kerala [2022:KER:50902] to canv