The court determined that the applicant is entitled to bail due to lack of forensic evidence indicating presence of contraband and absence of prior offenses.

O R D E R

Alexander Thomas, J.

The afore captioned application has been filed under Sec.439 of the Cr.P.C., seeking regular bail, in regard to the involvement of the applicant/accused in crime No.155/2022 of Nadapuram Police Station (which has now led to Sessions Case, SC No.95/2022 on the file of the NDPS Special Court, Vadakara, Kozhikode), wherein the accused has been arrayed as accused for offences punishable under Secs.22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as ‘NDPS Act’ for short), Sec. 6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as ‘COTPA Act’ for short) and Sec.118(e) of the Kerala Police Act .

2. Heard Smt.Sruthy N. Bhat, learned counsel appearing for the applicant/sole accused and Sri.K.A. Anas, learned Public Prosecutor, appearing for the respondent-State of Kerala.

3. The gist of the prosecution allegation is that, on the basis of reliable information, the police had searched the house occupied by the accused, on 11.03.2022 at about 7.15 p.m. and thereby he was found in possession of two stamps of LSD, totally having a weight of 0.46 gms., 1125 packets of Hans and 1051 packets of COOL LIP (both the Hans and the COOL LIP are stated to be banned tobacco products) and thus, the accused has committed offences as per Sec.22(c) of the NDPS Act, Sec.6 of the COTPA Act & Sec.118(e) of the Kerala Police Act . The accused was arrested on 11.03.2022 and he was ordered to be remanded to judicial custody on 12.03.2022, by the orders of the learned Judicial First Class Magistrate, Vadakara, and he has been under remand since then.

4. The applicant sought regular bail under Sec.439 of the Cr.P.C., by filing Criminal Miscellaneous Petition No.311/2022 before the Special Judge (NDPS Act cases), Vadakara, which has been rejected as per order dated 17..06.2022. Being aggrieved thereby, the applicant has preferred the instant bail application before this Court. This case was posted before us by orders of the learned Single Judge, as another matter was referred to the Division Bench, for determination of a question of law.

5. The regular bail was rejected by the Special Court on the ground that the offence as per Sec.22(c) of the NDPS Act would attract the restrictive conditions imposed by Sec.37 of the NDPS Act, inasmuch as, the offence as per Sec.22(c) of the NDPS Act, is one in respect of a contraband of commercial quantity and hence, the sentence on convictions is 10 years and above.

6. The main contention urged by Smt. Sruthy Bhat, learned counsel is that, the alleged search and seizure was effected on the day in question at 7.25 p.m., which is admittedly after sunset and hence, the restrictive rigour contained in the second proviso to Sec.42(1) of the NDPS Act would apply. The operative portion of Sec.42(1) stipulates that the search in question may be conducted between sunrise and sunset. Whereas, the second proviso to Sec.42(1) would mandate that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. It is urged that no legally acceptable grounds of belief has been recorded by the officer concerned, while effecting the search and seizure in the instant case, as what has been purportedly stated is merely mechanically recanting th