Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943 BAIL APPL. NO. 2556 OF 2021 CRIME NO.1/2021 OF TALIPARAMBA EXCISE RANGE OFFICE, KANNUR PETITIONER/S: UMA M AGED 24 YEARS D/O MANIKANDAN M, KADUCHIRA, PATTANCHERY AMSAM DESAM, CHITOOR TALUK, PALAKKAD DIST., PIN - 517001 BY ADVS. BIJU ANTONY ALOOR SRI.K.P.PRASANTH SHRI.SHAFIN AHAMMED SMT.T.S.KRISHNENDU SMT.ARCHANA SURESH
RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE CIRCLE INSPECTOR OF EXCISE EXCISE RANGE OFFICE, THALIPARAMBU, KANNUR DISTRICT., PIN - 670141 BY ADV PUBLIC PROSECUTOR SRI.SANTHOSH PETER/SMT.V.SREEJA-PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.05.2021, ALONG WITH Bail Appl..2766/2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943 BAIL APPL. NO. 2766 OF 2021 CRIME NO.1/2021 OF TALIPARAMBA EXCISE RANGE OFFICE, KANNUR PETITIONER/S: SHAHABAS.K, AGED 24 YEARS S/O ABDUL NASAR, KUNNOTH VEEDU, CHERUKATTOOR AMSOM DESOM, MANANTHAVADI TALUK, WAYANAD DIST., PIN - 670645 BY ADVS. BIJU ANTONY ALOOR SRI.K.P.PRASANTH SHRI.SHAFIN AHAMMED SMT.ARCHANA SURESH SHRI.JINSON JACOB
RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE CIRCLE INSPECTOR OF EXCISE EXCISE RANGE OFFICE, THALIPARAMBU, KANNUR DISTRICT PIN-670141. BY ADV PUBLIC PROSECUTOR SRI.SANTHOSH PETER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.05.2021, ALONG WITH Bail Appl..2556/2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:
COMMON ORDER
Dated, this the 28th day of May, 2021 [B.A. Nos. 2556 and 2766 of 2021] Applications for regular bail under section 439 Cr.P.C.
2. The applicants in B.A. 2766/2021 and B.A.
respectively, in Crime No. 01 of 2021 of Taliparamba Excise Range Office for having committed offences punishable under Sections 22(c) and 20(b)(ii)(B) read with section 29 of the Narcotic Drugs and Psychotropic Substances Act,1985('NDPS Act' for short).
3. The prosecution case, in brief, is that on 01.01.2021
at about 9:00AM, the Excise Range Inspector of the Taliparamba Range, following discreet information about certain persons engaged in use and sale of Narcotic drugs and Psychotropic substances in Sneha Inn Bar Hotel, conducted a search of some rooms of the Hotel with his party. Search resulted in recovery of 1750 grams of LSD, 53 grams of MDMA, and 5.37 grams of Hashish oil from the room. The accused were all involved in packing the contraband for the purpose of distribution and sale. All the accused were arrested and remanded to judicial custody.
4. The applicants state that they are innocent, and have
nothing to do with the contraband seized. It is stated that the 7th accused is an employee in the beauty parlour situated in the Hotel, and has been falsely implicated. It is also stated that the detecting Officer did not comply with the mandatory provisions of Section 50 of the NDPS Act.
5. Heard Sri B.A.Aloor, appearing for the applicants, and Sri.Santhosh Peter, the Senior Public Prosecutor for the State. Records perused.
6. The learned counsel for the applicant, Sri Aloor
strenously argues that the detecting officer has not properly complied the provisions of Section 50 of the NDPS Act. He relies on the decision of the Apex Court in State of Rajasthan v. Paramanand and another [2014 KHC 4138: AIR 2014 SC 1384] and the decisions of this Court in Basanth Balaram & Ano v. State of Kerala [2019(1)KHC 667] and Muhammed Ameen and Ano v. NCB Cochin [2020(1)KHC 645] to bolster his argument.
7. In State of Punjab v. Baldev Singh, [1999 KHC 707 :
1999 (6) SCC 172] a Constitution Bench of Apex Court considered, inter alia, questions as to what would be the resultant effect, in case the requirements of S.50 were not complied with, and observed thus:
“That whether or not the safeguards provided in S.50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of S.50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.”
A mini trial cannot be held while considering an application for bail to decide if the provisions of S.50 of NDPS Act have been infringed or not. Even if the materials in the case diary reveals prima facie breach of the provisions of S.50 of the NDPS Act, sub-paragraph (5) of para 57 in the case of Baldev Singh (supra), which is reproduced earlier, requires that prosecution ought to be given an opportunity to establish its case at the trial.
8. Coming to the facts of this case, the applicants were
allegedly involved actively in the dealing of the contraband seized. LSD and MDMA seized are of commercial quantity, attracting the rigour under section 37 of the NDPS Act. In view of the catena of decisions to the affect that the twin conditions under Section 37 are mandatory, the applicants are not entitled to bail. The applications are dismissed. Sd/- ASHOK MENON JUDGE jg