Salam vs State Of Kerala
2022 Latest Caselaw 5836 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
      TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                     BAIL APPL. NO. 1320 OF 2022
 CRIME NO.47/2021 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL
                           SQUAD, PALAKKAD
PETITIONER/6th ACCUSED:

            SALAM
            AGED 47 YEARS
            SON OF MUHAMMEDALI, BANGLAMPARAMBIL HOUSE
            THAIKATTUKARA P.O, ALUVA
            ERNAKULAM, PIN - 683106
            BY ADVS.
            R.ROHITH
            HARISHMA P. THAMPI


RESPONDENT/COMPLAINANT:

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




            SRI. K.A. ANAS (PP)


     THIS   BAIL   APPLICATION    HAVING    COME   UP   FOR   ADMISSION   ON
31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 1320 OF 2022               2



                                      ORDER

This is an application for regular bail.

2. Petitioner is the 6th accused in Crime No.47/2021

of Excise Enforcement and Anti Narcotic Special Squad,

Palakkad district, alleging commission of offence under

Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as 'the NDPS

Act').

3. Allegation against the petitioner is that he along

with the other accused in the case procured a huge quantity

of ganja from Andhra Pradesh, in violation of the provisions

of the NDPS Act and thereby, he and the other accused

committed the offences alleged against them.

4. I had, by order dated 02.02.2022, dismissed the

bail application of the petitioner, finding that the petitioner

has not been able to place any material which would suggest

that he is entitled to bail notwithstanding the rigor of Section

37 of the NDPS Act.

5. Learned counsel appearing for the petitioner

raised three contentions. Firstly, it is submitted that, in

respect of the body search conducted with regard to accused

Nos.1 to 5, there is a clear violation of Section 50 of the

NDPS Act inasmuch as, the right to be searched in presence

of a Gazetted officer has been violated. It is submitted that

the Gazetted officer present was a part of the team which

intercepted the contraband and this is a clear violation of

Section 50 of the NDPS Act as held by the Supreme Court in

State of Rajasthan V. Parmanand and Another [2014 (5)

SCC 345]. It is submitted that this Court also in Harris @

Chericka V. Circle Inspector of Police, Mattanchery

[2022 (1) KLD 768] took the same view following the law laid

down in Rajasthan V. Parmanand and Another (Supra) .

Secondly, it is submitted that a reading of the final report

shows that the only basis on which the petitioner has been

arrayed as an accused are the financial transactions between

the petitioner and one Shahul Hameed. It is submitted that

the said Shahul Hameed is not an accused in the case and is

cited only as a witness. It is submitted that merely on the

basis of financial transactions between the petitioner and a

person who is not an accused in the case, it cannot be said

that the petitioner was part of the conspiracy to procure

ganja from Andhra Pradesh. Thirdly, it is submitted that

there is admittedly no material to show that the petitioner

was part of the conspiracy. It is submitted that the petitioner

has been in custody for 251 days and the charge sheet was

filed also arraying the petitioner as an accused only to defeat

his indefensible right to obtain statutory bail.

6. Learned Public Prosecutor opposes the grant of

bail. It is submitted that in the light of the judgment of the

Hon'ble Supreme Court in Sekhar Suman Verma V.

Superintendent of N.C.B. and Another [2016 KHC 6429],

the laid law down in Parmanand (supra) may no longer be

good law. It is submitted that in Sekhar Suman Verma

(supra), the Supreme Court has clearly held that merely

because the Gazetted officer in question was part of the

batch of officers who conducted the search in that place, it

could not be said that the provisions of Section 50 of the

NDPS Act have been violated. It is also submitted that the

question of application of Section 50 of the NDPS Act does

not arise in this case as the contraband was admittedly

recovered from the bus and not from the body of the accused.

It is pointed out that the prosecution has received clear

evidence of conspiracy and it is not the financial transactions

of the petitioner with the aforesaid Shahul Hameed alone that

is a basis for arraying him as an accused. It is submitted that

there is materials collected by the prosecution which would

indicate that the petitioner had arranged for the bus which

was coming from West Bengal to stop at Kakkinada, Andhra

pradesh and to receive the contraband for the purpose of

transportation to Kerala. It is submitted that the call data

records also show that the petitioner was very much available

at the spot where the interception took place. However, on

seeing the Excise team, the petitioner escaped from the

scene. It is submitted that for the same reasons, the

contention of the learned counsel for the petitioner that

prosecution had hurriedly filed a final report against the

petitioner to defeat his right to get statutory bail without any

material being available is also not to be accepted.

7. I have gone through the judgments in Parmanand

(supra) and that of this Court in Harris @ Chericka (Supra)

and also the judgment of the Hon'ble Supreme Court in

Sekhar Suman Verman (supra). I notice that this Court in

Harris @ Chericka (supra) had followed the law laid down

in Parmanand (supra) . I also notice that the attention of

this Court was not drawn to the later judgment of the Hon'ble

Supreme Court in Sekhar Suman Verma (supra) where a

view different from the view taken in Parmanand (supra)

has been taken by the Supreme Court. Therefore, following

the law laid down in Sekhar Suman Verma (supra), I am

not inclined to hold that there is violation of Section 50 of the

NDPS Act in the facts of the present case. Secondly, as

noticed in my earlier order through which I have denied bail

of the petitioner, the prosecution has found materials to

suggest that apart from the financial transactions, there are

some circumstances including the presence of the petitioner

at the spot of interception which would indicate that the

petitioner was very much part of the conspiracy to procure

drugs in huge quantity from Andhra Pradesh and transport it

to the State of Kerala. Apart from the above, I also find that

there are no change of circumstances warranting a different

view to be taken.

For all these reasons, the bail application fails and

stands dismissed.

sd/-

GOPINATH P.

JUDGE ajt