Kerala High Court

Salman Faris vs State Of Kerala on 16 February, 2024

Author: C.S.Dias

Bench: C.S.Dias

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                      THE HONOURABLE MR.JUSTICE C.S.DIAS

           FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945

                         BAIL APPL. NO. 1990 OF 2023

         CRIME NO.50/2022 OF KOZHIKODE EXCISE RANGE OFFICE, KOZHIKODE

PETITIONER/ACCUSED


             SALMAN FARIS
             AGED 25 YEARS
             S/O USMAN KOYA, KUNNATH PARAMBIL HOUSE, KOLATHARE P.O,
             CHERUVANNUR, KOZHIKODE DISTRICT, PIN - 673027

             BY ADVS.
             P.MOHAMED SABAH
             LIBIN STANLEY
             SAIPOOJA
             SADIK ISMAYIL
             R.GAYATHRI
             M.MAHIN HAMZA
             SRINATH C.V.
             ALWIN JOSEPH



RESPONDENT/STATE & COMPLAINANT:

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

     2       THE EXCISE CIRCLE INSPECTOR
             EXCISE RANGE OFFICE, KOZHIKODE, KOZHIKODE DISTRICT, PIN -
             673001

             BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

             SR PP SRI C S HRITHWIK




      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL.NO.1990 OF 2023

                                           2




                                  O R D E R

The application is filed under Section 439 of the Code of

Criminal Procedure, 1973, by the sole accused in Crime

No.50/2022 of the Excise Range Office, Kozhikode,

registered against him for allegedly committing the offences

punishable under Sections 22(c) and 20(b)(ii)(B) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (in

short, "Act"). The petitioner was arrested on 21.11.2022.

2. The crux of the prosecution case is that, on

21.11.2022 at around 13.35 hours, the accused was found in

conscious possession of 3.25 grams of LSD, 10 grams of

MDMA and 5 gram of ganja which he was found transporting

on his motorcycle bearing Reg.No.KL 11 AB 1888 through

the Aravindghosh road, Kozhikode. Thus, the accused has

committed the above offences.

3. Heard Sri.P.Mohamed Sabah, the learned counsel BAIL APPL.NO.1990 OF 2023

appearing for the petitioner and Sri.C.S.Hrithwik, the

learned Public Prosecutor appearing for the respondents.

4. The learned counsel appearing for the petitioner

submitted that the petitioner is totally innocent of the

accusations levelled against him. He has been falsely

implicated in the crime. The petitioner has been in judicial

custody since 21.11.2022, which is more than 1½ years. The

investigation in the case is complete and the final report has

been laid. The petitioner's further detention is not necessary.

In addition to the above contentions, there is a total violation

of the mandatory procedural requirements under Sections 42

and 50 of the Act. There is no materials on record, even in

the final report, to substantiate that the Investigating Officer

had taken down in writing the information received by him to

arrest the petitioner as provided under Section 42 of the Act

or to conduct the search on the petitioner's body in the

presence of a gazetted officer or the nearest Magistrate as

provided under Section 50 of the Act. Therefore, the search

and seizure are vitiated, and the petitioner is entitled to be BAIL APPL.NO.1990 OF 2023

released on bail as laid down by the Hon'ble Supreme Court

in Sarija Banu Alias Janarthani Alias Janani and

another v. State through Inspector of Police [(2004) 12

SCC 266] and the decision of this Court in Majeed C.P. v.

State of Kerala & Anr. (B.A.No.6908 of 2023). Therefore, it

is only to be presumed that the petitioner has not committed

the alleged offences. Moreover, the petitioner has no

criminal antecedents. Therefore, the rigour under Section 37

of the Act stands diluted. Hence, the petitioner may be

released on bail.

5. The learned Public Prosecutor vehemently opposed

the application. He contended that there is total compliance

with Sections 42 and 50 of the Act. The petitioner was

apprehended during a joint-combing operation that has been

conducted by the Excise Circle Inspector with the State

Excise Enforcement Squad. It was on inspecting the

petitioner's motorcycle that they found that the petitioner

was in possession of the contraband articles. The information

in writing to arrest the petitioner has been recorded and BAIL APPL.NO.1990 OF 2023

produced with the final report. He drew the attention of this

Court to page 14 of the final report produced as Annexure 4.

He submitted the petitioner's body search was conducted in

the presence of CW25. In fact, the petitioner was arrested

with a packet in his hands. Consequently, the petitioner was

asked whether he was willing for a body search in the

presence of a gazetted officer/magistrate. But, the petitioner

remained silent. Accordingly, CW 25 the Assistant Excise

Commissioner was informed about the matter and he went

to the spot and gave permission to the Investigating Officer

to conduct the body search. In the body search, the

remaining contraband was seized from the jeans pocket of

the petitioner. Hence, the Investigating Officer has complied

with Sections 42 and 50 of the Act. The learned Public

Prosecutor placed reliance on the decisions of the Hon'ble

Supreme Court in State, NCT of Delhi v. Malvinder Singh

[2007 KHC 3750] and Union of India v. Md. Nawaz Khan

[2021 KHC 6503] and the decision of this Court in and

Abeesh v. State of Kerala [2022:KER:50902] and BAIL APPL.NO.1990 OF 2023

contended that in combing operations the strict compliance

of Section 42 is not necessary. Even assuming that there has

not been substantial compliance of Section 42, that is a

question of fact to be considered at the time of trial. Since

the contraband is of a commercial quantity, the rigour under

Section 37 of the Act applies to the facts and circumstances

of the case. Hence, the application may be dismissed.

6. The prosecution allegation is that, on 21.11.2022

afternoon, two teams in a combing operation intercepted the

petitioner and found him in possession of 3.25 grams of LSD,

10 grams of MDMA and 5 grams of ganja, which is of a

commercial quantity.

7. The pivotal contention of the learned counsel for

the petitioner is that there is violation of the mandatory

procedural requirements contemplated under Sections 42

and 50 of the Act. The above submission was countered by

the learned Public Prosecutor stating that there has been

compliance of the above provisions, which is evident from

Annexure 4 final report laid before the Trial Court. So BAIL APPL.NO.1990 OF 2023

whether there is sufficient compliance or not is a disputed

question of fact.

8. In Md. Nawaz Khan's case, the Hon'ble Supreme

Court, after considering the earlier precedents on the point,

has held thus:

"28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana."

9. The above view has been followed by this Court in

Abeesh's case in the following lines:

"8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In Sajan Abraham's case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In Nawas Khan's case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with BAIL APPL.NO.1990 OF 2023

Section 42 or not is not a matter which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act."

10. In the light of the exposition of law in Md. Nawaz

Khan's case and Abeesh's case, which I fully concur, I am

of the firm view that the contention of the learned counsel for

the petitioner, which has been countered by the Public

Prosecutor, is a matter than can only be decided in trial and

not at the stage of consideration of the bail application. On

going through the materials placed on record, prima facie

I am satisfied that there is substantial compliance of the

above provisions, especially when the seizure was made in a

joint combing operation and further CW25 has given

permission to the Investigating Officer to conduct the body

search of the petitioner.

11. It is to be remembered that, the contraband

allegedly seized from the accused is of a commercial

quantity. Therefore, the rigour under Section 37 of the Act BAIL APPL.NO.1990 OF 2023

applies to the facts of the case.

12. Section 37 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, regulates the grant of bail in cases

involving offences under the Act. It is apposite to reproduce

Section 37, which reads as follows:

"37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

13. A plain reading of the above provision demonstrates

that a person accused of an offence under Sections 19, 24

and 27-A of the Act and also involving a commercial quantity

shall not be released on bail unless the court is satisfied that BAIL APPL.NO.1990 OF 2023

there are reasonable grounds to believe that the accused is

not guilty and is not likely to commit any offence while on

bail. Therefore, the power to grant bail to a person accused

of committing an offence under the Act is subject to

provisions contained under Sec.439 of the Code and

parameters referred to above and on the accused satisfying

the twin conditions under Sec.37 of the Act.

14. While interpreting 'reasonable grounds' prescribed

under Section 37 of the Act, the Honourable Supreme Court

in Union of India v. Shiv Shanker Kesari [(2007) 7 SCC

798] held as follows:

"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression 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. Md. Nawaz Khan's case, the Honourable

Supreme Court, after referring to a host of judicial

precedents on Section 37 of the Act, observed that:

"23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the BAIL APPL.NO.1990 OF 2023

accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed".

16. It is also well-settled that in addition to applying the

rigour under Section 37 of the Act, the courts are also bound

to follow the general parameters under Section 439 of the

Code, while considering a bail application.

17. In Prasanta Kumar Sarkar v. Ashis Chatterjee

[(2010) 14 SCC 496], the Honourable Supreme Court has

laid down the broad parameters for Courts while dealing

with bail applications by holding as follows:

"9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: