Kerala High Court
Riyas A C vs State Of Kerala on 16 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
BAIL APPL. NO. 273 OF 2024
CRIME NO.747/2022 OF BEKAL POLICE STATION, KASARGOD
PETITIONER/ACCUSED NO.1:
RIYAS A C,
AGED 26 YEARS
S/O MUHAMMED KUNHI, BISMILLA MANZIL, KARUVALAM,
PADANNAKAD, KANHANGAD VILLAGE, KASARGOD DISTRICT,
PIN - 671314.
BY ADVS.
SAM ISAAC POTHIYIL
S.SURAJA
NEETHU SATHEESH
MUHAMMED SUHAIR C.A
KARAN MATHEW
RAMU SUBHASH
ANANTHAKRISHNAN R.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 THE STATION HOUSE OFFICER,
BEKAL POLICE STATION, KASARGOD DISTRICT, PIN -
671318.
SENIOR PUBLIC PROSECUTOR K DENNY DEVASSY
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
08.02.2024, THE COURT ON 16.02.2024 DELIVERED THE FOLLOWING:
B.A.No.273/2024 2
A. BADHARUDEEN, J.
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B.A.No.273 of 2024
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Dated this the 16th day of February, 2024
ORDER
This is the third bail application filed by the sole
accused in Crime No.747 of 2022 of Devikulam Police
Station under Section 439 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioner as
well as the learned Public Prosecutor and perused the
relevant documents.
3. The petitioner had filed an earlier bail application
vide B.A. No.939 of 2023. This Court dismissed the same as
per order dated 08.03.2023 and the order is as under:
"This is an application for regular bail, filed by the
sole accused in Crime No.747/2022 of Bakel Police Station.
2. Heard the learned counsel for the petitioner as well
as the learned Public Prosecutor.
3. I have perused the relevant documents.
4. The prosecution case is that, on the basis of a
reliable information, search was conducted at Room No.301 of
Sreego Resort near Bakel Fort, doubting possession of Narcotic
Drugs and Psychotropic Substances, by the accused. On search,
25.33 gm of MDMA and 6.380 gm of Hashish Oil, were recovered
from the bag kept at the room of the accused. Subsequently, his
body search was conducted and 49.430 gm of MDMA was
recovered on body search. On this premise, crime, alleging
commission of offences punishable under Sections 22(c) and 20(b)
(ii) (A) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, 'the NDPS Act' hereinafter) was registered and
the same is on investigation.
5. The learned counsel for the petitioner pointed out
two anomalies in the matter of recovery alleged to be effected by
the Investigating Officer. The first point argued is that, though the
search was on the basis of prior information, the same is not
properly recorded in writing, as mandated under Section 42(1) of
the NDPS Act and mere General Diary entry is available in this
regard. According to the learned counsel for the petitioner,
General Diary entry is insufficient, to comply the mandate of
Section 42(1) of the NDPS Act. Second point argued is that, in this
case, body search also was conducted in relation to the petitioner,
without complying Section 50 of the NDPS Act and therefore, the
said search is vitiated. Accordingly, the learned counsel for the
petitioner pressed for relief of regular bail, on the submission that
Section 37 of the NDPS Act has no application, prima facie.
6. The learned Public Prosecutor opposed the first
contention stating that, the prior information, received has been
put it into writing by the Investigating Officer in the General
Diary and Section 42(1) does not provide any specific form
otherwise. Therefore, non compliance of Section 42(1) pointed out
by the learned counsel for the petitioner, is of no avail. However,
the learned Public Prosecutor also could not justify body search
of the accused, since nothing stated in the recovery mahazar
regarding compliance of Section 50.
7. While addressing two contentions raised by the
learned counsel for the petitioner, the first point to be considered
is as to whether there is non compliance of Section 42(1) of the
NDPS Act. On perusing Section 42(1), an authorized officer
referred in Section 42(1), if he has reason to believe from
personal knowledge or information given by any person and taken
down in writing that any narcotic drug, or any psychotropic
substance, or controlled substance in respect of which an offence
punishable under this Act has been committed, can enter into and
search any building, conveyance or place. Section 42(1) provides
two situations. The first situation is the personal knowledge of the
officer. The second situation is based on an information given by
any other person. If the information is given by any other person,
the same shall be taken down in writing. In the case at hand, the
report of the Investigating Officer would go to show that he had
recorded the information in General Diary, in writing, and based
on the same, search was conducted. In fact, Section 42(1) does not
provide the manner, in which, the information shall be taken down
in writing. If so, if an information of such nature taken down in
writing in the General Diary before proceeding for search, to be
held as compliance of Section 42(1) and it is not safe to hold that,
an information taken down in writing in the General Diary, shall
not suffice compliance of Section 42. Therefore, this challenge
cannot be sustained.
8. Regarding the second point urged by the learned
counsel for the petitioner that non compliance of Section 50 of the
NDPS Act would vitiate the recovery, since the prosecution
records do not suggest compliance of Section 50, in any way, the
said contention can be raised before the trial court during
evidence. However, it is relevant to note that sub section (5) of
Section 50 provides that, when an officer duly authorised under
section 42 has reason to believe that it is not possible to take the
person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be searched
parting with possession of any narcotic drug or psychotropic
substance, or controlled substance or article or document, he
may, instead of taking such person to the nearest Gazetted Officer
or Magistrate, proceed to search the person as provided under
section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
Similarly, sub section (6) of Section 50 provides that, after a
search is conducted under sub-section (5), the officer shall record
the reasons for such belief which necessitated such search and
within seventy-two hours send a copy thereof to his immediate
official superior.
9. Therefore, by resorting to the mandate of sub
sections (5) and (6) of Section 50 also, search is permitted in the
absence of Gazetted Officer or Magistrate, subject to the
conditions stipulated in sub sections (5) and (6). However, the
available prosecution records do not suggest that the body search
in the instant case, was by following the mandate under sub
sections (5) and (6) of the NDPS Act. The said aspect also left
open to be considered by the trial court
10. Now, the question is; merely because Section 50
was not complied, while conducting body search of the petitioner,
the recovery effected in relation to the contraband found to be
possessed by him at his room, in a bag, for which, compliance of
Section 50 is not mandatory, also to be disbelieved so as to dilute
the rigor under Section 37 of the NDPS Act. 11. It is settled law
that compliance of Section 50 is not mandatory in relation to
search other than body search. If so, non compliance of Section 50
will not vitiate the recovery otherwise effected by the Investigating
Officer in this crime. In view of the matter, merely because there
is violation of the stipulations contained in Section 50, while
conducting body search, the same shall not absolve the criminal
culpability of the accused with regard to the contraband seized
otherwise, for which, compliance of Section 50 is not mandatory.
Here, commercial quantity of contraband was seized from the
accused from the bag kept at his room, therefore, grant of bail in
this case is interdicted by the special provision under Section 37
of the NDPS Act. In this case, recovery of commercial quantity of
contraband is well made out excluding the recovery based on
body search and therefore, recovery of commercial contraband
from the possession of the accused is well established, prima
facie.
12. No doubt, when the prosecution alleges possession
of commercial quantity of contraband, the rider under Section 37
of the NDPS Act would apply. Section 37 of the NDPS Act
provides as under:
37. Offences to be cognizable and non
bailable.--
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence
punishable for offences under section 19 or section 24 or
section 27A and also for offences involving commercial
quantity shall be released on bail or on his own bond
unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such release,
and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty of
such offence and that he is not likely to commit any
offence while on bail.
(2) The limitations on granting of bail
specified in clause (b) of subsection (1) are in addition to
the limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in
force on granting of bail.
13. On a perusal of Section 37(1)(a)(i), when the
Public Prosecutor opposes bail application of a person involved
in a crime, where commercial quantity of the contraband was
seized, the Court can grant bail only after satisfying two
conditions: viz; (1) There are 'reasonable grounds' for believing
that the accused is not guilty of such offences and (2) he will not
commit any offence while on bail.
14. The Apex Court considered the meaning of
'reasonable grounds' in the decision reported in (2007) 7 SCC
798, Union of India v. Shiv Shankar Kesari and held that the
expression 'reasonable grounds' means something more than
prima facie grounds. It connotes substantial probable causes for
believing that the accused is not guilty of the offence charged and
this reasonable belief contemplated in turn points to existence of
such facts and circumstances as are sufficient in themselves to
justify recording of satisfaction that the accused is not guilty of the
offence charged.
15. It was further held that the Court while
considering the application for bail with reference to S.37 of the
Act is not called upon to record a finding of not guilty. It is for the
limited purpose essentially confined to the question of releasing
the accused on bail that the Court is called upon to see if there are
reasonable grounds for believing that the accused is not guilty
and records its satisfaction about the existence of such grounds.
But the Court has not to consider the matter as if it is pronouncing
a judgment of acquittal and recording a finding of not guilty.
16. While considering the rider under Section 37 of
the NDPS Act, the same principles have been reiterated, in the
decisions reported in Superintendent, Narcotics Central Bureau
v. R.Paulsamy [2000 KHC 1549: AIR2000 SC 3661: (2000) 9
SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New
Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC
3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT
300: 2004 CriLJ 1810: 2004 (166) ELT 302], Union of India v.
Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115:
2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC
6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022:
2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491:
2008(3) SCC (Cri) 29], Union of India v. Rattan Malik [2009
KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC
(Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2)
SCALE 51], Union of India v. Niyazuddin [2017 KHC 4465: AIR
2017 SC 3932: 2018 (13) SCC 738], State of Kerala v. Rajesh
[2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2)
KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this
point is one reported in [2023 Crl.L.J.799], Union of India v.
Jitendra Giri.
17. On a plain reading of Section 37(1) (b) and 37(1)
(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has
to be understood that two ingredients shall be read conjunctively
and not disjunctively. Therefore satisfaction of both conditions are
sine qua non for granting bail to an accused who alleged to have
been committed the offences under Section 19 or Section 24 or
Section 27A and also for the offences involving commercial
quantity as provided under Section 37(1)(b) of the NDPS Act.
Unless Section 37 is not amended by the legislature in cases
specifically referred under Section 37(1)(b) of the NDPS Act, the
Court could not grant bail without recording satisfaction of the
above twin ingredients.
18. Thus, while granting bail to an accused, who
alleged to have committed offences under the NDPS Act involving,
commercial quantity, where learned Public Prosecutor opposes
grant of bail, this Court must satisfy that there are reasonable
grounds for believing that the accused is not guilty of the offence
and he will not likely to commit any offence while on bail.
19. Going by the prosecution allegations, this Court
could not satisfy the above conditions in any manner. Therefore,
the petitioner is not liable to be released on bail. Accordingly, this
bail application stands dismissed."
4. Earlier bail applications at the instance of the petitioner
viz., B.A.No.939/2023 and B.A.No.3866 of 2023, were
dismissed as on 08.03.2023 and 13.11.2023 respectively
holding that the crime under Section 37 of the NDPS Act
could not be diluted.
5. The learned counsel for the petitioner requests for
granting bail to the petitioner on the ground that now the
petitioner has completed one year in custody. As per letter
dated 01.02.2024, the learned Special Judge reported that the
trial in this case would be completed on or before
16.04.2024, as directed earlier by this Court.
6. In [2023 (3) KHC 212], Fasil v. State of Kerala,
this Court laid down certain parameters to dilute the rider
under Section 37(1) of the NDPS Act as under:
"10. Epitomizing the parameters laid down by the
Apex Court in the decisions herein above discussed, the
following parameters clubbed together can be considered to
dilute the rigour under Section 37 of the NDPS Act:
(1) the accused should not have any criminal
antecedents.
(2) the accused has been in custody for a pretty
long time, at least more than one year, (say for eg. two years
and 15 days in the instant case).
(3) the impossibility of trial within a reasonable
time (for this purpose, the Court granting bail should ensure
that trial could not be completed at least within a period of
six months).
Yet another aspect to be added in the list, in my
view, is the quantity of the contraband. That is to say, when
the quantity of contraband is something above the
intermediate quantity and the same is not a huge or sizable
quantity, the same also can be considered after satisfying the
above 3 parameters stated herein above, for diluting the
rigour under Section 37 of the NDPS Act."
7. Trial could not be possible within a period of six
months is one of the criteria laid therein. In this matter since
the learned Special Judge expressed willingness to dispose of
the case on or before 16.04.2024, there is no reason to grant
bail to the petitioner.
Therefore, this Bail Application stands dismissed with
direction to the learned Special Judge to complete the trial
and dispose of the case on or before 16.04.2024, as reported,
without fail.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
