Muhammed Asarudheen vs State Of Kerala
2021 Latest Caselaw 1386 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE ASHOK MENON

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                       Bail Appl.No.7752 OF 2020

  O.R. NO.04/2019 OF NARCOTICS CONTROL BUREAU, KOCHI , Ernakulam


PETITIONER/S:

                MUHAMMED ASARUDHEEN,
                AGED 26 YEARS, S/O ABDUL RAHEEM KASIMKUNJU,
                THADATHARIKATHU HOUSE, NOORAMTHODU P.O,
                KUNTHALAMTHERU, ADIVARAM,
                KOZHIKODE DISTRICT - 673586.

                BY ADV. SRI.RENJITH B.MARAR

RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR,
                HIGH COURT OF KERALA, ERNAKULAM - 682031.

      2         THE INTELLIGENCE OFFICER
                NARCOTICS CONTROL BUREAU, SUB ZONE,
                COCHIN - 682037.

                R1 BY PUBLIC PROSECUTOR
                R2 BY ADV. SHRI.M.V.S.NAMPOOTHIRY

     THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03.12.2020,
THE COURT ON 14.01.2021 PASSED THE FOLLOWING:
 Bail Appl.No.7752 OF 2020

                                  2




                            O R D E R

Dated this the 14th day of January 2021

The applicant is the 2nd accused in O.R.No.4/2019 of

the Narcotics Control Bureau, Sub Zone, Kochi, for

offences punishable under Sections 8(C), 22(C), 28 and

29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short "NDPS Act").

2. The earlier applications for bail filed by the

accused under Section 439 of the Cr.P.C. as

B.A.No.8431/2019, B.A.No.2891/2020, and B.A.No.

4540/2020 were dismissed by this Court in view of the

embargo under Section 37(1)(b)(ii) of the NDPS Act.

3. The relentless effort of the applicant

continues and he has approached this Court once again

with the present application seeking bail. The two main

grounds raised by the applicant reiterating his demand

for bail.

4. The first ground is that there is a gross

violation of Section 50 of the NDPS Act, since even Bail Appl.No.7752 OF 2020

prior to the arrival of the officers of the NCB,

recovery is affected by the officers of the CISF led by

Shri Saroj Bhupendra R., Assistant Commandant.

Subsequent to the arrival of the officers of the NCB,

the very same officer was called upon to witness the

search as a Gazetted Officer as contemplated under

Section 50 of the NDPS Act. Hence, it has to be

regarded that the search as contemplated under Section

50 of the NDPS Act was totally vitiated.

5. The second main ground raised by the applicant

is that he has been implicated solely on the basis of a

confession statement given by the 1st accused under

Section 67 of the NDPS Act, which according to the

latest decision of the Supreme Court in Thofan Singh v.

State of Tamil Nadu, 2020 SCC OnLine SC 882, is totally

unacceptable and inadmissible.

6. I would consider the objection regarding the

non-compliance of Section 50 first.

On its plain reading, Section 50 would come into play

only in the case of a search of a person as

distinguished from search of any premises etc. However, Bail Appl.No.7752 OF 2020

if the empowered officer, without any prior information

as contemplated by Section 42 of the Act makes a search

or causes arrest of person during the normal course of

investigation into an offence or suspected offence and

on completion of that search, a contraband under the

NDPS Act is also recovered, the requirements of Section

50 of the Act are not attracted. That when an

empowered officer or a duly authorised officer acting

on prior information is about to search a person, it is

imperative for him to inform the concerned person of

his right under Sub-section (1) of Section 50 of being

taken to the nearest Gazetted Officer or the nearest

Magistrate for making the search.

7. The consequence of allegations of recovery of

contraband articles in breach of statutory safeguards

in relation to offences under the 1985 Act has been

laid down in the Constitution Bench judgment of the

Supreme Court in the case of State of Punjab Vs. Baldev

Singh, AIR 1999 SC 2378. In this decision it has been

explained in paragraph 55:

Bail Appl.No.7752 OF 2020

"On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, or prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of Bail Appl.No.7752 OF 2020

lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by S.50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; Bail Appl.No.7752 OF 2020

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.

(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, or prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;

(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case."

Supreme Court in the case of State of Himachal Pradesh

Vs. Pawan Kumar, AIR 2005 SC 2265 considered as to what

would constitute personal search has been examined by

thus:

"We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be Bail Appl.No.7752 OF 2020

understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.

10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such.

They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suit case, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, Bail Appl.No.7752 OF 2020

shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."

In Sarwan Ram alias Sarwan Singh Ram and Another v.

State of West Bengal, 2017 KHC 3288 also, the Apex

Court held that a mini trail is not contemplated to Bail Appl.No.7752 OF 2020

find a reasonable case against the applicant based on

non-compliance of the mandatory provisions of Section

50 of the NDPS Act.

8. Irregularity of procedure may ultimately

vitiate the proceeding and lead to acquittal. However,

that is a matter to be decided on the basis of the

evidence at the trial. In the instant case, contraband

articles were seized from the baggage of the 1st

accused when it was being screened by the officers of

the CISF. They found something suspicious and sought an

explanation. The 1st accused give an explanation that

it was some powder used for the purpose of jewellery

making. Getting suspicious that it was Narcotic drug,

coming within the purview of the NDPS Act, the officers

of the NCB were informed and they took over the

investigation from there.

9. As regards applicability of Section 67 of the

NDPS Act, what the Apex Court has held is that

confession statement cannot be relied upon for the

purpose of conviction as the officers detecting an

offence under the NDPS Act are to be considered as Bail Appl.No.7752 OF 2020

Police officers and hence, statements recorded by them

would come within the prohibition of Section 25 of the

Evidence Act. Section 67 has been struck off the

statute book. Such confession statements can definitely

be used as corroborative piece of evidence, provided

that there are other materials available. For that

also, the prosecution must be given an opportunity to

go for trial.

10. Under the circumstances, I find that the

arguments raised by the learned Counsel for the

applicant are not sustainable to throw the case of the

prosecution overboard at the threshold and grant bail

to the applicant.

11. The application for bail filed by the applicant

fails again. Since the final report has already been

filed, the jurisdictional Court is directed to expedite

trial.

Sd/-

                                                    ASHOK MENON

dkr                                                        JUDGE