C.S.Dias, J
1. The application is filed under Section 439 of the Code of Criminal Procedure, by the second accused in Crime No.907 of 2023 of the Angamaly Police Station, registered against the accused (two in number) for allegedly committing the offences under Sections 8(c), 22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act', in short). The petitioner was arrested on 07.09.2023.
2. The crux of the prosecution case is that: on 7.9.2023 at around 00.15 hrs, the accused Nos.1 and 2 were found in possession of 147 gms of MDMA, which was kept beneath the musical system of a motor car bearing Reg No.KL-46-K-6438, which was found moving in-front of a bakery in Angamaly Junction. The Sub Inspector of Angamaly Police Station, on getting secret information regarding the transportation of the contraband article, intercepted the vehicle and seized the contraband article and arrested the accused. Thus, the accused have committed the above offences.
3. Heard; Sri.P.Mohamed Sabah, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor.
4. The learned counsel appearing for the petitioner argued that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime without any cogent material. The petitioner has been in judicial custody since 7.9.2023. The contraband was not seized from the possession of the petitioner. The Investigating Officer has violated the mandatory statutory formalities contemplated under Sec.42 of the Act and the law laid down by the Hon'ble Supreme Court in Karnail Singh v. State of Haryana [(2009) 8 SCC 539], Sukhdev Singh v. State of Haryana [(2013) 2 SCC 212] and State of Rajasthan v. Jagraj Singh @ Hansa [(2016) 11 SCC 687]. He further contended that there is no scrap of material to show that the information regarding the concealment of the contraband article was reduced into writing and sent to the superior officer. Moreover, since the seizure was conducted after sunset and before sunrise in a private conveyance, there is nothing on record to establish that a search warrant was obtained to conduct the search. It was mandatory on the part of the Detecting Officer to have prepared his grounds of belief explaining the reason for conducting the search in a car without obtaining a warrant from the Court of competent jurisdiction and then sending the copy to his immediate superior. He further argued that it is well settled in Sarija Banu (A) Janarthani v. State [(2004) 12 SCC 266] that an infraction of Section 42 of the Act entitles the accused to be released on bail. The said view has been followed by this Court in Basant Balram v. State of Kerala [2019 (1)KLT 523] and Labeebul Mubarak v. State of Kerala [2018 (3) KLT 263]. As there is a violation of the mandatory procedural requirement, the rigour under Article 37 of the Act stands diluted. Even though the petitioner moved a similar application before the Court of Session, the same was dismissed by Annexure-5 order. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.
5. The learned Public Prosecutor seriously opposed the application. She contended that the Investigating Officer has scrupulously complied with the procedural requirements under Sec.42 of the Act. She made available the case diary to substantiate the compliance of the statutory requirements. According to her, the contentions raised by the petitioner are disputed questions of fact, which can only be adjudicated after trial. She relied 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 Abeesh v. State of Kerala [2022:KER 50902] and contended that, if there is substantial compliance of Section 42 of the Act, then the matter needs to be decided after trial. Since the contraband is of a commercial quantity, the rigour under Section 37 of the Act applies to the facts of the case. Hence, the application may be dismissed.
6. The prosecution allegation against the petitioner is that, he and the first accused were found in possession of 147 gms of MDMA, which was stored in the music system of the car in which they were travelling. The Investigating Officer, on getting secret information, intercepted the vehicle and seized the contraband article from the petitioner and the first accused and consequently arrested them.
7. The petitioner's contention is that, since the contraband was seized after sunset and before sunrise from a private conveyance, it was mandatory for the Investigating Officer to have recorded his grounds of belief to conduct the search and seizure inside the car and have sent the information to the superior officer. However, the said prescription has been flouted in the case on hand. The said submission is countered by the Public Prosecutor by arguing that there has been compliance of the requirements under Section 42 of the Act, which can be seen from the case diary, which has been handed over to me. According to her, the information was passed from the Investigating Officer to the Inspector of Police (IPHSO), Angamaly Police Station on 6.9.2023 and the same was received by the superior officer on the following day.
8. Whether the above information is sufficient compliance of Section 42 of the Act or not is a disputed question of fact.
9. 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.”
10. 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 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.”
11. 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 provision in view of the letter dated 6.9.2023.
12. 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 applies to the facts of the case.
13. 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.”
14. 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 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.
15. 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”.
16. 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 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”.
17. 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.
18. 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:
(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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail”.
19. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly the communication dated 6.9.2023 purportedly sent by the Investigating Officer to the Inspector of Police, Angamaly Police Station and on being prima facie satisfied of substantial compliance of Section 42 of the Act and further on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, the potential severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction and the rigour under Section 37 of the Act, I do not find any reasonable ground to hold that the petitioner is not guilty of the offences alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. Hence, I am not convinced or satisfied that the petitioner can be released on bail.
Resultantly, the application is dismissed.
