Non-compliance with NDPS Act provisions does not preclude bail; such issues are to be addressed in the trial, not during bail consideration.

ORDER

Dated this the 08th day of March, 2021 APPLICATION FOR REGULAR BAIL The applicant is the 1st accused in Crime No.40 of 2020 of Excise Enforcement & Anti Narcotic Special Squad, Thrissur, for having allegedly committed offences punishable under Sections 22 (C), 29 & 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS Act”). The prosecution case, in brief, is this:

2. On 13.10.2020, at about 1.00 PM, the officers of the Excise Enforcement Squad, intercepted a car bearing Reg.No.KL-17-J-4862, in which the applicant and the 2nd accused were travelling and recovered 22.1105 grams of MDMA, from them which is a narcotic drug of commercial quantity and the crime was registered. The accused was arrested and remanded to judicial custody. The applicant states that the allegations are not sustainable and that primarily, there is non-compliance of Section

42C as well as Section 50 of the NDPS Act which are mandatory.

3. The learned counsel has relied upon several judgments of the Supreme Court and this Court, primarilyVijay Singh Chandu Bhat Jadeja v. State of Gujarat 2010 (4) KLT 547 (SC), Thundayil Muhahammadali v. State of Kerala 2020 (4) KHC 64, Muhammed Ameen and Ano v. NCB Cochin 2020(1) KHC 645, in support of his arguments that non-compliance of Sections 50 and 42 of the NDPS Act would end in the acquittal of the accused. And, therefore, the very fact that those mandatory provisions have not been complied with to hold that there are reasonable grounds to find the applicant not guilty of the offence. And, hence, the embargo under Section 37 of the NDPS Act will not be attracted.

4. It is settled by the Hon'ble Supreme Court in a number of decisions mainly in State of Punjab v. Baldev Singh (1999) 6 SCC 172 and in Sarwan Ram (alias) Sarwan Singh Ram and Another v. State of West Bengal (2017 KHC 3288):2017 CriLJ NOC 168, that a mini-trial is not contemplated to determine compliance of Section 42 or 50 of the NDPS Act while considering the bail application.

5. This is the 2nd successive application and the earlier application had considered all these aspects in great detail relying on the judgments of the Supreme Court to hold that a bail application is not a min trial. And, therefore, the non-compliance of Sections 42 and 50 will have to be considered during trial and not during the bail applications. It is not a case where the total non-compliance of the Sections. But, it is pointed out that it is improperly compiled. And, therefore, there is no sufficient compliance. Those matters are to be dealt with by the trial court during the recording of evidence. Hence, there is no change of circumstances that enables this Court to consider this bail application again.

The application is therefore dismissed.