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2024 Supreme(Online)(KER) 26901
HIGH COURT OF KERALA
C.S. DIAS, J
SHIHABUDHEEN, – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl. 1254/2024
Procedural safeguards in drug seizure cases must be strictly followed; non-compliance can lead to the exclusion of evidence and potentially vitiate the trial.
Headnote:
Criminal - Bail Applications - Code of Criminal Procedure, 1973 - Sections 439; Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 22(c), 29, 37, 52A; Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 - Sections 3, 10 - The court emphasized the importance of strict adherence to procedural safeguards in the seizure and handling of narcotic substances, ruling that non-compliance with mandated evidence collection procedures undermines the prosecution's case.
Fact of the Case:
The accused were arrested for allegedly possessing MDMA after a police raid led to the seizure of 51.2 grams from them in a hotel. They contested the legality of the search, claiming violations of mandatory procedural requirements in handling the seized contraband.
Issues: Whether procedural lapses in the seizure of contraband undermine the admissibility of evidence and affect the accused's right to a fair trial.
Ratio Decidendi: The court held that strict adherence to legal and procedural requirements in drug seizure cases is vital, and failures in these processes compromise the prosecution's ability to establish a case beyond a reasonable doubt.
Final Decision: The bail applications were allowed, directing the release of the accused on bail subject to specific conditions.
The applications are filed under Section 439 of the Code of Criminal Procedure, 1973 , by the accused Nos. 1 to 3 in Crime No.1495/2024 of the Kondotty Police Station, Malappuram, registered against the accused for allegedly committing the offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioners were arrested on 20.12.2023.
2. The crux of the prosecution case is that: on 20.12.2023, at around 14.00 hours, when the Sub Inspector of Police, Kondotty Police Station, conducted a search in room No.209 of New Man Tourist Home near Kozhikode Airport, he seized 23 grams of MDMA from the purse of the first accused, 14.2 grams of MDMA from the purse of the second accused, 12 grams of MDMA from the jeans pocket of the third accused and 2.00 grams of MDMA from the room where the accused were seated. Accordingly, a total quantity of 51.2 of MDMA was seized from the accused and the room. Thus, the accused have committed the above offences.
3. Heard; Sri. Sam Isaac Pothiyil, the learned counsel appearing for the petitioners; Sri. C. S. Hrithwik and Smt.Neema T.V., the learned Senior Public Prosecutors.
4. The learned counsel for the petitioners vehemently argued that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. The contraband was not seized from the accused, as alleged by the prosecution. The Detecting Officer has violated the mandatory provisions of Sections 42, 50 & 52A of the Act and Rules 3 & 10 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling, and Disposal) Rules, 2022 (in short, ‘Rules).
Even though the contraband articles were allegedly separately seized from the three accused, and 2.00
grams was seized from the hotel room, the Detecting Officer in flagrant violation of Section 52A & Rule 10 of the Rules, mixed the contraband from the four packets and put them in one packet. It is thereafter that the one packet was produced before the learned Magistrate in a single cover, which is evident from the seizure mahazar prepared by the Detecting Officer.
Moreover, in the chemical analysis report, it has turned out that the contraband is 'methamphetamine' and not 'MDMA', as alleged by the prosecution. The petitioners are in their 30s and are the sole breadwinners of their family. They have been in judicial custody for the last more than four months. The investigation in the case is complete, and recovery has been effected. Therefore, the petitioners’ further detention is unnecessary.
Hence, the applications may be allowed.
5. The learned Public Prosecutors seriously opposed the application. They argued that there is no prohibition in the contraband articles being transferred from the four packets and being, put into one cover, especially since the contraband is of the same substance. Since the contraband is of commercial quantity, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. If the petitioners are released on bail, there is every likelihood of them committing similar offences. Hence, the applications may be dismissed.
6. The prosecution allegation against the accused is that the Detecting Officer, on getting secret information, conducted a surprise inspection on 20.12.2023 in the hotel premises, where the accused were residing. In the search that was conducted by the Detecting Officer, a total quantity of 51.2 grams of MDMA was seized from the accused and the room. A reading of the seizure mahazar substantiates that the Detecting Officer seized 22 grams of MDMA from the purse of the first accused, 14.2 grams of MDMA from the purse of the second accused and 12 grams of MDMA from the jeans pocket of the third accused.
Likewise, 2.00 grams of MDMA was seized from the room. Thus, a total quantity of 51.2 grams of MDMA was seized. Indisputably, the Detecting Officer, after seizing the contraband from the
