Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 BAIL APPL. NO. 1253 OF 2024 CRIME NO.1495/2023 OF KONDOTTY POLICE STATION, MALAPPURAM AGAINST THE ORDER IN CRMP NO.90 OF 2024 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI PETITIONER: SAKEER. K, AGED 34 YEARS S/O AHAMMED,PALAKKALIL HOUSE, ANTHIYOORKUNNU, PULIKKAL, MALAPPURAM DISTRICT, PIN - 673637 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA 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 STATION HOUSE OFFICER, KONDOTTY POLICE STATION, MALAPPURAM DIST, PIN - 673638 OTHER PRESENT: SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, ALONG WITH BAIL APPL..1254/2024, 1255/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 BAIL APPL. NO. 1254 OF 2024 CRIME NO.1495/2023 OF KONDOTTY POLICE STATION, MALAPPURAM AGAINST THE ORDER IN CRMP NO.90 OF 2024 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI PETITIONER: SHIHABUDHEEN, AGED 30 YEARS S/O KUTTYALI,VADAKKUNGHARA HOUSE, POOVOOR, PULIKKAL,MALAPPURAM DISTRICT, PIN - 673637 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA 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 STATION HOUSE OFFICER, KONDOTTY POLICE STATION, MALAPPURAM DIST, PIN - 673638 OTHER PRESENT: SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, ALONG WITH BAIL APPL..1253/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 BAIL APPL. NO. 1255 OF 2024 CRIME NO.1495/2023 OF KONDOTTY POLICE STATION, MALAPPURAM AGAINST THE ORDER IN CRMP NO.90 OF 2024 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI PETITIONER: NAHAS, AGED 31 YEARS S/O NISSARUDHEEN,FIDHA MANSIL,PERINTHANI, VELLAKADAVU,THIRUVANATHAPURAM DISTRICT, PIN - 695008 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA 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 STATION HOUSE OFFICER, KONDOTTY POLICE STATION, MALAPPURAM DIST, PIN - 673638 OTHER PRESENT: SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, ALONG WITH BAIL APPL..1253/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:4:- Dated this the 25th day of April, 2024
COMMON ORDER
The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused Nos. 1 to 3 in Crime No.1495/2024 of the Kondotty Police Station, Malappuram, registered against the accused for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioners were arrested on 20.12.2023.
2. The crux of the prosecution case is that: on
20.12.2023, at around 14.00 hours, when the Sub Inspector of Police, Kondotty Police Station, conducted a search in room No.209 of New Man Tourist Home near Kozhikode Airport, he seized 23 grams of MDMA from the purse of the first accused, 14.2 grams of MDMA from the purse of the second accused, 12 -:5:- grams of MDMA from the jeans pocket of the third accused and 2.00 grams of MDMA from the room where the accused were seated. Accordingly, a total quantity of 51.2 of MDMA was seized from the accused and the room. Thus, the accused have committed the above offences.
3. Heard; Sri. Sam Isaac Pothiyil, the learned counsel appearing for the petitioners; Sri. C. S. Hrithwik and Smt.Neema T.V., the learned Senior Public Prosecutors.
4. The learned counsel for the petitioners
vehemently argued that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. The contraband was not seized from the accused, as alleged by the prosecution. The Detecting Officer has violated the mandatory provisions of Sections 42, 50 & 52A of the Act and Rules 3 & 10 of the Narcotic Drugs -:6:- and Psychotropic Substances (Seizure, Storage, Sampling, and Disposal) Rules, 2022 (in short, ‘Rules). Even though the contraband articles were allegedly separately seized from the three accused, and 2.00 grams was seized from the hotel room, the Detecting Officer in flagrant violation of Section 52A & Rule 10 of the Rules, mixed the contraband from the four packets and put them in one packet. It is thereafter that the one packet was produced before the learned Magistrate in a single cover, which is evident from the seizure mahazar prepared by the Detecting Officer. Moreover, in the chemical analysis report, it has turned out that the contraband is 'methamphetamine' and not 'MDMA', as alleged by the prosecution. The petitioners are in their 30s and are the sole breadwinners of their family. They have been in judicial custody for the last more than four months. The investigation in the case is complete, and recovery has been effected. Therefore, -:7:- the petitioners’ further detention is unnecessary. Hence, the applications may be allowed.
5. The learned Public Prosecutors seriously
opposed the application. They argued that there is no prohibition in the contraband articles being transferred from the four packets and being, put into one cover, especially since the contraband is of the same substance. Since the contraband is of commercial quantity, the rigour under Section 37 of the Act applies to the facts and circumstances of the case. If the petitioners are released on bail, there is every likelihood of them committing similar offences. Hence, the applications may be dismissed.
6. The prosecution allegation against the
accused is that the Detecting Officer, on getting secret information, conducted a surprise inspection on 20.12.2023 in the hotel premises, where the accused were residing. In the search that was conducted by -:8:- the Detecting Officer, a total quantity of 51.2 grams of MDMA was seized from the accused and the room. A reading of the seizure mahazar substantiates that the Detecting Officer seized 22 grams of MDMA from the purse of the first accused, 14.2 grams of MDMA from the purse of the second accused and 12 grams of MDMA from the jeans pocket of the third accused. Likewise, 2.00 grams of MDMA was seized from the room. Thus, a total quantity of 51.2 grams of MDMA was seized. Indisputably, the Detecting Officer, after seizing the contraband from the first accused, transferred the contraband into another cover which was taken by him and, subsequently, after seizing the contraband from the second accused, he transferred the said contraband and mixed it with the contraband of the first accused. He carried out the same exercise with the contraband that was seized from the third accused and also from the room. Thus, the Detecting -:9:- Officer mixed the four samples and transferred them in one packet. It was this packet that was produced before the jurisdictional court for the purpose of drawing a sample and sending it for chemical examination.
7. Section 52 A of the Act, which is germane to the case on hand, reads as follows:
[52-A. Disposal of seized narcotic drugs and psychotropic substances.- [(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.]
(2) Where any [narcotic drugs, psychotropic
substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances]
-:10:-
containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]
8. By virtue of the power conferred under
Section 76 of the Act, the Central Government has promulgated the Narcotic Drugs and Psychotropic -:11:- Substances (seizure, storage, sampling and disposal) Rules, 2022, which came into effect from 23.12.2022.
9. It is gainful to refer to Rules 3 and 10 of the said rules, which reads thus:
“Rule 3. Classification of seized material. - (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately.
(2) If the narcotic drugs, psychotropic substances and
controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification.
(3) All narcotic drugs, psychotropic substances and controlled
substances found in loose form shall be packed in tamper proof bag or in container, which shall be serially numbered and weighed and the particular of drugs and the date of seizure shall also be mentioned on such bag or container: Provided that bulk quantities of ganja, poppy straw may be packed in gunny bags and sealed in such way that it cannot be tempered with: Provided further that seized concealing material such as trolley bags, backpack and other seized articles shall be sealed separately.
(4) The classification, weighing, packaging and numbering referred to
in this sub-rule shall be done in the presence of search witnesses (Panchas) and the person from whose possession the drugs and substances was recovered and a mention to this effect shall invariably be made in the panchnama drawn on the spot of seizure.
(5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama. Rule 10. Drawing the samples. - (1) One sample, in duplicate, shall be drawn from each package and container seized. -:12:-
(2) When the packages and containers seized together are of identical
size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn: Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers.
(3) In case of drawing sample from a particular lot, it shall be
ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.” (emphasis supplied)
10. While interpreting Section 52 A of the Act, the Honourable Supreme Court in Union of India v. Mohanlal [(2016) 3 SCC 379] observed as follows:
“15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate
shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer -:13:-
empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of
seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure”. (emphasis given)
11. The Honourable Supreme Court has followed
the principles laid down in Mohanlal’s case in the subsequent cases of identical nature, namely, Bothilal v. The Intelligence Officer, NCB [2023 SCC OnLine SC 498], Simarnjit Singh v. State of Punjab [2023 SCC OnLine SC 906] Mangilal v. State of Madhya Pradesh [2023 SCC OnLine SC 862] and Yusuf @ Asif -:14:- v. State [2023 SCC OnLine SC 1328].
12. In Yusuf @ Asif’s case, the Honourable
Supreme Court has held that in the absence of any material to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, then the seized contraband and the samples drawn would not be a valid piece of primary evidence in trial. Therefore, the trial will stand vitiated.
13. On a comprehensive evaluation of the above-
referred section, rules, and their interpretations in the above referred judgments, leaves room for no doubt that it is mandatory for the Investigating Officer to prepare an inventory of the seized narcotic drugs/psychotropic substances/controlled substances with all such details relating to their description, quality, quantity, mode of packing, marks, numbers or -:15:- such other identifying particulars, and then make an application to the Magistrate to permit him to draw the representative samples of such contraband in the presence of the Magistrate so as to certify the correctness of the inventory so prepared. If the contraband is found in packages or containers, such packages/containers shall be weighed separately and serially numbered for the purpose of identification and one sample, in duplicate, shall be drawn from each package/container seized.
14. The word used in the above provisions is ‘shall’ and not ‘may’, which establishes that the rule is mandatory and not directory.
15. It is to be remembered that it is after
cleavage of opinion on the interpretation of the Standing Orders/Instructions on the procedure to be followed in the drawal, storage, testing and disposal of samples seized under the Act, that the Central -:16:- Government has framed the above Rules, making it mandatory to draw representative samples from each seized package/container.
16. Even before the framing of the rules, in Khet Singh v. Union of India [(2002) 4 SCC 380], the Honourable Supreme Court observed in the following manner:
“10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation.
17.In cases of a similar nature, where the Detecting Officer mixed the samples contained in different covers and put the contraband in one cover and sent the sample for analysis, the Rajasthan High Court in Netram v. State of Rajasthan [2014 (2) WLN 394 (Raj).] and the Delhi High Court in Edward Khimani Kamau v. The Narcotics Control Bureau [2015 SCC OnLine Del 9860] and Amani Fidel Chris -:17:- v. Narcotics Control Bureau [2020 SCC OnLine Del 2080] relying on Section 52 A and the Standing Instructions/Orders have held that the mixing of contents and the failure to send representative samples not only lose the sanctity of the case property in the individual cover, but also the evidence of the quantity in each cover, and it causes serious prejudice to the accused. [Read also the decisions in Shajahan v. Inspector of Excise (2019 SCC OnLine Ker 3685) and Kulwinder Kumar v. State of Punjab (2018 SCC OnLine P&H 1754)].
18. In this case, indisputably, the contraband was
seized separately by the Detecting Officer from the accused Nos. 1 to 3 and from the room, which were all in separate covers. He then, put the contraband seized from the four covers into one cover and it was this cover that was produced before the learned Magistrate. It was from the single cover that the -:18:- representative sample was drawn and sent for chemical analysis, which is in total contravention of the provisions of law. When the statutory provisions mandate a particular procedure to be followed, the Detecting Officer is duty-bound to follow the prescribed procedure. No person can assume the nature of the substance on speculation and conjectures. It is to ensure a fair trial that the legislature has incorporated the above safeguards in the above provisions.
19. Now, the question is whether the above question can be considered in an application filed under Section 439 of the Cr PC.
20. In Bharat Chaudhary v. Union of India
[(2021) 20 SCC 50], a three-judge Bench of the Honourable Supreme Court, in an appeal arising from an order cancelling the bail, has held in the following manner: -:19:-
“13. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited”.
21. In State of Punjab v. Baldev Singh [(1999) 6 SCC 172] a Constitutional Bench has observed in the following lines:
“45……… …….. ……… If Pooran Mal [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] judgment is read in the manner in which it has been construed in State of H.P. v. Pirthi Chand [(1996) 2 SCC 37 : 1996 SCC (Cri) 210] (though that issue did not strictly speaking arise for consideration in that case), then there would remain no distinction between recovery of illicit drugs etc. seized during a search conducted “after” following the provisions of Section 50 of the NDPS Act and a seizure made during a search conducted “in breach of” the provisions of Section 50 of the NDPS Act. Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the
-:20:- accused. If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded….. ……”
22. Again in Khet Singh’s case it is held as follows:
“16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence”.
23. It may be true that in the present case when
the quantity of the contraband allegedly seized from the accused is added, it will fall within the ambit of a commercial quantity as specified in Serial No.159 of the Specification of the Small and Commercial Quantity of Narcotic Drug or Psychotropic Substance (SO 1055 (E) dated 19.10.2001 as amended), and consequentially the rigour under Section 37 of the Act will apply. -:21:-
24. Section 37 mandates that a person who is
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.
25. The prosecution does not have a case that the petitioner has criminal antecedents.
26. In Dheeraj Kumar Shukla v. The State of
Uttar Pradesh [2023 SCC OnLine SC 918], the Hon’ble Supreme Court has held that the second limb under Section 37 of the NDPS Act can be diluted if the accused has no criminal antecedents.
27. On an overall conspectus of the facts, rival
submission made across the Bar, the law referred to the afore-cited judgments and my findings rendered above, particularly regarding the infraction of the -:22:- statutory provisions by the Detecting Officer, which has obviously caused prejudice to the petitioner, and on comprehending the fact that petitioner has no criminal antecedents, I find that there are reasonable grounds to hold that the petitioner has not committed the alleged offence and is not likely to commit the offence. Therefore, the rigour under Section 37 stands diluted and the petitioner is entitled to be released on bail. In the result, the applications are allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One lakh only)each with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:
(i) The petitioners shall appear before the Investigating Officer as and when required;
(ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so -:23:-
as to dissuade them from disclosing such facts
to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii)The petitioners shall not commit any offence while they are on bail;
(iv) The petitioners shall surrender their passports, if
any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond;
(v) In case of violation of any of the conditions
mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. -:24:-
(vii) Needless to mention, it would be well within the
powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663]. (viii)Before parting with the case, it is clarified that the observations made in the order are limited to considering the application for bail alone, and nothing expressed hereinabove shall be treated as an observation on the merits of the case pending trial. Sd/- C.S.DIAS,JUDGE DST/25.04.24 //True copy// P.A. To Judge