Kerala High Court

Riyas Puthusseri vs State Of Kerala on 1 March, 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 1ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945
                        BAIL APPL. NO. 8777 OF 2023
    CRIME NO.6/2023 OF MANJERI EXCISE RANGE OFFICE, MALAPPURAM
PETITIONER/3RD ACCUSED:

            SIRAJUDHEEN,
            AGED 28 YEARS
            S/O MUSTHAFA, MOONUKKARAN VEETTIL HOUSE, PANAKKAD
            VILLAGE, PATTARKADAVU DESOM, PATTARKADAVU PO, ERNAD
            TALUK, MALAPPURAM DT, PIN - 676519

            BY ADVS.
            T.K.AJITH KUMAR
            HARITHA HARIDAS



RESPONDENT:

            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)
            ADDL. STATE PUBLIC PROSECUTOR(AG-28)



OTHER PRESENT:

            ADGP SRI GRASHIOUS KURIAKOSE ,

            SR PP SRI C K SURESH




     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
01.03.2024, ALONG WITH Bail Appl..5877/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 B.A. Nos.5877 & 8777 OF 2023
                                 2


          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 1ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945
                 BAIL APPL. NO. 5877 OF 2023
 CRIME NO.06/2023 OF MANJERI EXCISE RANGE OFFICE, MALAPPURAM
AGAINST THE ORDER/JUDGMENT DATED 03.06.2023 IN CRMP NO.1520
OF 2023 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI
PETITIONER/2ND ACCUSED:

          RIYAS PUTHUSSERI,
          AGED 31 YEARS
          S/O ABDUL AZEEZ PUTHUSSERI, KONOMPARA, MELMURI
          (PO), ERNAD, TALUK, MALAPPURAM, PIN - 676571

          BY ADV M.DEVESH



RESPONDENT/COMPLAINANT:

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

          BY ADVS.

          ADDL.DIRECTOR GENERAL OF PROSECUTION

          SRI GRASHIOUS KURIAKOSE

          SR PP SRI C K SURESH




     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01.03.2024, ALONG WITH Bail Appl..8777/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 B.A. Nos.5877 & 8777 OF 2023
                                3




          Dated this the 1st day of March, 2024

                     COMMON ORDER

The applications are filed under Section 439 of the

Code of Criminal Procedure, 1973, by the accused 2 and

3 in Crime No.6/2023 of the Excise Range Office, Manjeri,

registered against the accused (three in number) for

allegedly committing the offences punishable under

Sections 22(c) and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short, 'the Act').

As these bail applications are arise out of the same crime,

they were consolidated and jointly heard and are being

disposed of by this common order. B.A No.5877/2023 is

filed by the second accused and B.A. No.8777/2023 is

filed by the 3rd accused. The petitioners were arrested

on 21.2.2023.

2.. The prosecution allegation, in brief, is that: on B.A. Nos.5877 & 8777 OF 2023

21.02.2023 at around 14.45 hours, the accused 1 to 3 had

received a courier containing 499.28 grams of MDMA ( in

short, 'contraband'). The Detecting Officer on getting

information, intercepted the car bearing No. KL 14 S

1110 in which the accused were travelling and seized the

contraband from the possession of the accused. Thus, the

accused have committed the above offences.

3. Heard; Sri.M.Devesh, the learned counsel

appearing for the second accused, Sri. T.K. Ajith Kumar,

the learned counsel appearing for the third accused and

Sri.C.K.Suresh, the learned Special Public Prosecutor.

4. The learned counsel for the petitioners in unison

submitted that the petitioners are totally innocent of the

accusation levelled against them. They have been falsely

implicated in the crime. The alleged contraband was

received by the first accused. There is no material to

establish that the accused 2 and 3 have any complicity in

the matter. The learned Counsel also submitted that the

Investigating Officer has violated the provisions of B.A. Nos.5877 & 8777 OF 2023

Sections 40, 50 and 52 of the Act and the Narcotic Drugs

and Psychotropic Substances (Seizure, Storage, Sampling

and Disposal) Rules, 2022 ( in short, Rules). Even though

the contraband was allegedly seized from the accused on

21.2.2023 and the inventory was prepared by the

jurisdictional Magistrate on 22.2.2023, the samples were

forwarded to the Chemical Examiner's Laboratory

Department, for analysis only on 7.3.2023. The

inordinate delay on the part of the court in sending the

samples to the laboratory has caused serious prejudice to

the petitioners, and is in flagrant violation of Rule 13 of

the Rules. In addition to the above contention, the

petitioners have been languishing in jail for the last one

year. The petitioners have no criminal antecedents.

Therefore, the rigour under Section 37 of the Act stands

diluted. Furthermore, the petitioners were released on

interim bail for the reason that there was violation of Rule

13 of the Rules. Subsequently, by order dated 26.2.2024,

this Court directed the petitioners to surrender before the B.A. Nos.5877 & 8777 OF 2023

jurisdictional Jail Superintendent and the petitioners have

complied with the said directions. The petitioners'

continued detention is unnecessary, especially since the

investigation is complete and the complaint/final report

has been laid. Hence, the applications may be allowed.

5. The learned Public Prosecutor strenuously

opposed the applications. He contended that there are

incriminating materials to substantiate the involvement of

the petitioners in the above crime. Even though, it has

turned out that the contraband is Methamphetamine

having a quantity of 499.28 gram, the same is a

commercial quantity. Hence, the rigour under Section 37

of the Act applies to the facts of the case. He placed

reliance on the decision of the Honourable Supreme

Court in State of Kerala and others v. Rajesh and

others[ (2020) 12 SCC 122] and Union of India v.

Mohd. Nawaz Khan [(2021) 10 SCC 100], and the

decision of this Court in Sreejith v. State of

Kerala[2024 KHC Online 1048] to contend that the B.A. Nos.5877 & 8777 OF 2023

length of detention is totally immaterial so far as the

offence committed under the Act is concerned, where the

rigour under Section 37 of the Act applies. He also placed

reliance on the the decision in Kalyan Chandra Sarkar

v. Rajesh Ranjan alias Pappu Yadav and another

[(2004) 7 SCC 528], to fortify his contention. He further

submitted that the allegation regarding the infraction of

Sections 40 and 52 and Rules is a matter of trial as laid

down by the Honourable Supreme Court in Union of

India v. MD Nawaz Khan [2021 KHC 6503] followed by

this Court in Abeesh v. State of Kerala

[2022:KER:50902]. He submitted that the applications

are meritless and are only liable to be rejected at the very

threshold.

6. The prosecution allegation against the accused is

that, they were found in possession of 499.28 grams of

MDMA on 21.2.2023. The materials reveal that the

contraband was seized from the possession of the

accused. It has now turned out that, as per the chemical B.A. Nos.5877 & 8777 OF 2023

analysis report of the Regional Chemical Examiner's

Laboratory Department, Kozhikode dated 19.7.2023, the

contraband is Methamphetamine and not MDMA. Even

then the contraband is of a commercial quantity in view

of the specification given in Sl.No.159 of the Specification

of the Small and Commercial quantity of Narcotic Drugs

of Psychotropic Substance order dated 19.10.2001.

7. One of the cardinal contentions raised by the

learned counsel for the petitioner is that there is a

infraction of Rule 13 of the Rules committed by the

Investigating Officer because as per the materials on

record, the sample was produced before the Judicial First

Class Magistrate -I, Manjeri on 22.2.2023, but the same

was forwarded to the laboratory only on 7.3.2023.

8. When the bail applications came up for

consideration on 12.10.2023, this Court has called for a

report from the learned Magistrate to ascertain the

reason for the delay in forwarding the samples to the

laboratory. Initially, the learned Magistrate, by B.A. Nos.5877 & 8777 OF 2023

communication dated 20.10.2023, informed this Court

that the samples were received on 22.2.2023 and the

certificate was issued in Form V on the very same date

after completing the inventory proceedings.

Subsequently, the learned Magistrate, by communication

dated 19.12.2023, informed this Court that since the

contraband involved is of a commercial quantity, the

inventory proceedings under Annexures 1 and 2 of the

Act along with the samples were forwarded to the Special

Court for NDPS cases, Manjeri with a covering letter

dated 25.2.2023 and the same was despatched by the

said court on 27.2.2023. The learned Magistrate annexed

a copy of the despatch cum stamp account register to

establish that the samples were received on 27.2.2023.

9. In the meantime, by orders dated 12.10.2023 and

20.12.2023, this Court released the petitioners on interim

bail for the reason that there was total absence of any

mention regarding the preparation of inventory form by

the learned Magistrate.

B.A. Nos.5877 & 8777 OF 2023

10. Subsequently, when the bail applications came

up for consideration on 26.02.2024, this Court after

perusing the chemical analysis report, found that the

samples were received by the laboratory from the Special

Judge of the Special Court on 07.03.2023 and the

samples were analyzed and turned out to be

Methamphetamine. Accordingly, this Court directed the

petitioners to surrender before the jurisdictional Jail

Superintendent on or before 28.02.2024. The said order

has been complied with by the petitioners.

11. The learned counsel for the petitioners submitted

that since Rule 13 of the Rules mandate that the

Magistrate has to forward the samples to the laboratory

without any delay and as the samples in the case on hand

were seized on 21.02.2023, and produced before the

learned Magistrate on 22.02.2023, but the same were

only received by the laboratory only on 07.03.2023, there

is infraction of Rule 13. Similarly, the chemical analysis

report reveals that the quantity of the samples certified B.A. Nos.5877 & 8777 OF 2023

by the special court is not the same as that has been

received by the laboratory, which proves that the

sampling procedure adopted is erroneous. These acts

have caused prejudice to the petitioners. Hence, the

petitioners are entitled to the benefit of doubt and may be

released on bail.

12. In dealing with an identical situation, the Hon'ble

Supreme Court in Md Nawaz Khan's case, has observed

in the following lines:

"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."

13. The above view has followed by this Court in

Abeesh's case as thus:

"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 B.A. Nos.5877 & 8777 OF 2023

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 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."

14. Therefore, whether the procedure contemplated

under the Sections 42 and 50 of the Act and also the

Rules have been scrupulously complied with or not and B.A. Nos.5877 & 8777 OF 2023

whether there is any justification on the part of the

learned Magistrate in forwarding the samples to the

Special Court, and the Special Court then forwarding the

same to the laboratory etc., has caused prejudice to the

petitioners is a matter that can only be decided after the

conclusion of the trial and not at the nascent stage of

these bail applications.

15. The petitioners assert that there has been a

delay in forwarding the samples to the laboratory by the

courts below, which the prosecution justifies by stating

that only the court of competent jurisdiction could have

forwarded the samples, since the contraband is of a

commercial quantity, and the said aspect can only be

decided after the culmination of trial.

16. The fact remains that the contraband that was

seized from the petitioners is of a commercial quantity.

Therefore the first limb of Section 37 of the Act applies to

the facts of the case. Since the petitioners do not have

any criminal antecedents, probably they may get the B.A. Nos.5877 & 8777 OF 2023

benefit of the second limb, but the provision has to be

conjunctively read with.

17. 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

profitable to extract 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."

18. A plain reading of the above provision B.A. Nos.5877 & 8777 OF 2023

demonstrates that a person accused of an offence under

Sections 19, 24 and 27-A of the Act and also involving

commercial quantity shall not be released on bail unless

the court is satisfied that 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.

19. 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 B.A. Nos.5877 & 8777 OF 2023

sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged".

20. In Union of India v. Mohd. Nawaz Khan

[(2021) 10 SCC 100], 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 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". 10. 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.

21. 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 B.A. Nos.5877 & 8777 OF 2023

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: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated;