Burhanudheen Hyderali vs State Of Kerala
2022 Latest Caselaw 12401 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944
                      BAIL APPL. NO. 8840 OF 2022
AGAINST THE ORDER/JUDGMENTSC 814/2022 OF ADDITIONAL DISTRICT
                           COURT, THRISSUR
    CRIME NO.375/2022 OF MANNUTHY POLICESTATION, THRISSUR
PETITIONER/ACCUSED NO.1:

             BURHANUDHEEN HYDERALI,
             AGED 27 YEARS, S/O.HYDERALI,
             HAJRIYARAKATH HOUSE, MANATHALA P.O., CHAVAKKAD,
             THRISSUR , PIN - 680506
             BY ADVS.
             ANUPAMA SUBRAMANIAN
             K.R.SRIPATHI
             K.V.RAMABHADRAN


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, PIN - 682031
             BY ADVS.
             ADVOCATE GENERAL OFFICE KERALA
             ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)


OTHER PRESENT:

             SR.PP - SRI C.K.SURESH



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.12.2022,     THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 BA No.8840 of 2022                            2




                               VIJU ABRAHAM, J.
               .................................................................
                              B.A. No.8840 of 2022
               .................................................................
              Dated this the 23rd day of December, 2022

                                        ORDER

This is an application for regular bail.

2. The petitioner is the 1st accused in Crime No. 375/2022 of

Mannuthy Police Station alleging the commission of offences

punishable under Section 22 (c) of the NDPS Act.

3. The prosecution allegation is that on 13.05.2022, the

police party detected that the petitioner possessed 197 gms of MDMA

while in a service road near the over bridge at Mannuthy and the

petitioner was arrested from the spot.

4. The petitioner submits that he has been falsely implicated

in the above-said crime. He further submits that he is in custody from

14.05.2022 onwards and the final report is already filed. There is no

likelihood of completion of the trial within a reasonable time. Therefore,

he is entitled for release of bail. The petitioner has a further case that

there is total non-compliance of Section 42 of the NDPS Act. He has a

further case that there is violation of Section 50 in as much as the

petitioner was not searched in the presence of a gazetted officer.

Petitioner further submits that the chemical analysis report is not yet

received and it cannot be conclusively said that the alleged contraband

is narcotic drug. The petitioner relies on various judgments to support

his contention including the judgment in Shri Gurbaksh Singh Sibbia

and Others v. State of Punjab, (1980) 2 SCC 565, Euler Walde Mar

v. State of Kerala, 2004 (2) KLT 1072, Jiju Maran v. NCB, 2004 (2)

KLT 690, Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1

SCC 609, Basanth Balram v. State of Kerala, 2019 (1) KLT 523,

Muhammed Ameen v. NCB, Cochin, 2020 (1) KHC 645.

5. Learned Public Prosecutor seriously opposed the

application for bail mainly contending that the petitioner was arrested

from a public place and 197 gms of MDMA was seized from the

possession of the petitioner. The petitioner was informed of his right to

be examined in the presence of a gazetted officer or a magistrate and

he has given written reply that he needs the presence of a gazetted

officer at the time of search and thereafter the search was conducted in

the presence of a gazetted officer and the alleged contraband was

recovered from inside the undergarment of the petitioner. It was further

contended that as the alleged seizure and arrest were in a public place,

the same will come under Section 43 of the NDPS Act, and therefore,

the mandatory requirement under Section 42 of the Act need not be

complied with. Learned public prosecutor relies on the judgment in

Directorate of Revenue and another v. Mohammed Nisar Holia,

2007 (4) KHC 981 and Palayan v. State of Kerala, 2002 KHC 181 to

substantiate his contentions. As regards the violation of Section 50 of

the Act, it is submitted that the search and seizure were done in strict

compliance with the provision of Section 50 of the Act. Even any

violation of the same, is a matter to be considered at the time of trial

and he relies on the judgment in Sarwan Ram @ Sarwan Singh Ram

and another v. State of West Bengal, 2017 KHC 3288 in support of

his contention. Learned public prosecutor further submitted that the

investigation revealed that the petitioner obtained commercial quantity

of narcotic drug from one Ali who is an African national and the case

has now been reopened for investigation into the said aspects.

Considering the facts and circumstances of the case and

the nature of the allegation, I am of the prima facie opinion that since

seizure was from a public place, the provisions of Section 42 of the

NDPS Act is not applicable and that the search has been conducted in

compliance with Section 50 of the Act.

Since the quantity involved is of commercial quantity, the

rigor of Section 37 of the NDPS Act will definitely come into play, and

for the release of the petitioner on bail, the twin conditions provided in

the said section are to be satisfied. I am of the prima facie view that the

petitioner could not substantiate that the rigor under Section 37 of the

NDPS Act will not apply in the facts and circumstances of this case.

Therefore, the bail application is accordingly dismissed.

It is made clear that these prima facie observations are

made for the limited purpose of deciding this bail application and the

above opinion expressed shall not be regarded as opinion on merits,

during trial.

Sd/-

VIJU ABRAHAM JUDGE

cks