O R D E R

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, (in short, ‘Code’) by the 8th accused in Occurrence Report No.1/2024 of the Narcotic Control Bureau ( ‘NCB’ in short), Kochi, which is registered against eight accused persons, for allegedly committing the offences punishable under Sections 8(C) read with Sec.22(c), 23(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act', for short). The petitioner was arrested and remanded to judicial custody on 16.1.2024.

2. The crux of the prosecution case is that; on

9.1.2024, the Detecting Officer received an information that a suspected parcel sent from Germany to the first accused has reached the Foreign Post Office, Ernakulam. Accordingly, the information was communicated to the Superintendent of the NCB, Kochi, who directed to take necessary action in the matter. Consequently, the Detecting Officer formed a party, reached the Foreign Post Office, seized the parcel and recovered 0.24 gms of blotted paper ( 10 Nos) believed to be LSD. Subsequently, a Controlled Delivery Operation was directed by the Director General of the NCB under Sec.50A of the Act on 10.1.2024 and the dummy parcel was delivered to the house of the first accused. Consequently, the first accused was arrested and interrogated. In his voluntary statement, he stated that he and the second accused had booked 400 LSD blots from Germany by paying through crypto currency. Accordingly, the second accused was also arrested. He stated that he had distributed 200 blots to different persons. Based on his voluntary statement and the other materials on record, the Detecting Officer issued summons to the 8th accused and consequently conducted a search at his residence. However, no contraband was seized from his residence. During the interrogation of the 8th accused on 15.1.2024, he stated that he had concealed the contraband articles in his house. Accordingly, the Detecting Officer and party, along with 8th accused, went to the residence of the 8th accused and seized 0.76 gms of LSD . His arrest was recorded and the entire contraband was produced before the jurisdictional Magistrate. Thus, the accused have committed the above offences.

3. Heard; Sri.H.Nujumudeen, the learned counsel appearing for the petitioner and Sri.R.Vinu Raj, the learned Special Public Prosecutor.

4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to prove the petitioner’s involvement in the crime. The petitioner has been implicated solely on the basis of the confession statement made by the second accused, which is inadmissible in evidence in view of the law laid down in Tofan Singh v. State of Tamil Nadu [2020 (2) KLD 781]. The Detecting Officer has violated the provisions under Sec.42 of the Act since the contraband was seized after sunset. He has also violated the provisions under Sec.52 since he himself produced the contraband before the jurisdictional Magistrate and there is a marked difference in the weight of the contraband which was seized and what was produced before the Magistrate. The entire sampling procedure is illegal and stands vitiated. The petitioner has been in judicial custody for the last seven months, the investigation in the case is complete and the final report has been laid. Therefore, the petitioner may be enlarged on bail.

5. The learned Special Public Prosecutor seriously opposed the application. The Detecting Officer has filed a bail objection report, inter alia, contending that since commercial quantity of contraband was seized from the conscious possession of the petitioner, the rigour under Section 37 of the Act applies to the facts of the case. There are reasonable grounds to the hold that the petitioner has committed the above offence. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar