Kerala High Court
Labeebul Mubarack vs State Of Kerala on 22 June, 2018
Equivalent citations: AIRONLINE 2018 KER 709
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940
Bail Appl..No. 2839 of 2018
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CRIME NO.20/2018 OF NADAKKAVU POLICE STATION, KOZHIKODE
PETITIONER(S)/ACCUSED NO.2:
LABEEBUL MUBARACK,
S/O. ABDUL LATHEEF, AGED 23,
MUBARACK MANZIL, CHERUKARA,
OLAVANA POST, KOZHIKODE.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT(S)/STATE:
1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 018.
2. SUB INSPECTOR OF POLICE
NADAKKAVU POLICE STATION,
KOZHIKODE DISTRICT - 673 004.
BY PUBLIC PROSECUTOR MR. C.N.PRABHAKARAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22-06-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RAJA VIJAYARAGHAVAN V., J
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B.A. No. 2839 of 2018
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Dated this the 22nd day of June, 2018
ORDER
This application is filed under Section 439 of the Code of Criminal Procedure.
2. The applicant herein is the 2 nd accused in Crime No.20 of 2018 of the Nadakkavu Police Station. In the said Crime, he along with the 1st accused are accused of having committed offence under Section 20(b)(ii)A and Section 22(c) r/w. Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The prosecution case is that the Sub Inspector of Police along with his party were on patrol duty on 5.1.2018. At about 1 p.m., they reached R.P Mall, which is situated on the .
northern side of the Kozhikode - Mavoor road. In the parking ground of R.P.Mall, they found two persons sitting near to the compound wall and they were found engaged in packing some substance in small packets. On seeing the police personnel, they made an attempt to flee. They were immediately intercepted. The 1st accused was asked to what was in his pocket. He did not respond and he appeared perplexed. BA.No.2839/2018 -:2:- Immediately thereafter, the Sub Inspector is alleged to have conducted a body search. From the back pocket of the jeans, which was worn by the 1st accused, some cash, an ATM card, a brown packet containing some substance and 17 LSD Stamps were allegedly seized. Immediately thereafter, he ventured to search the applicant. From the back pocket of the jeans of the applicant, some cash, ID cards, three plastic covers containing some substance and an open packet containing some brown substance were seized. At about 2 p.m., their arrest was recorded in the presence of witnesses. The contraband was weighed using an electronic balance, which was available in the investigator's kit. From the 1st accused, the contraband seized was 0.210 gms of LSD and 8.8 gms of Hashish. The contraband seized from the applicant was weighed and it was found to be 2.890 gms of Hashish. The articles were sampled and sealed and a mahazar was also drawn up. Later the Crime was registered.
4. The learned counsel appearing for the applicant submitted that there are no reasonable grounds for believing that the applicant is guilty of the offence. According to the learned counsel, Section 50 of the Act has been blatantly violated. If the prosecution version is believed, the police officers had occasion to witness the 1 st accused as well as the BA.No.2839/2018 -:3:- applicant packing the contraband in small covers. On seeing the police personnel, the applicant as well as the 1 st accused had allegedly made attempts to flee from the spot. They were restrained and the body search of the 1st accused was initially conducted. This is in clear violation of Section 50 of the Act. The 1st accused was never informed of his right to be searched before a Gazetted Officer or a Magistrate. Without doing that a body search was conducted and LSD stamps were allegedly seized. It was thereafter that the body of the applicant was searched by the detecting officer and small quantity of Hashish was allegedly seized from his trouser pocket. According to the learned counsel, after having seized narcotic substances from the possession of the 1st accused and when the officer made up his mind to search the body of the applicant, he ought to have complied with Section 50 of the Act. The violation of the said provision would render the detection and seizure bad under law. Gross prejudice has been caused to the applicant is the submission. To bring home his point, the learned counsel has relied on the decisions of the Apex Court in Sarija Banu Alias Janarthani Alias Janani and Another v. State Through Inspector of Police [2004 (12) SCC 266], State of Punjab v. Balbir Singh [1994 (3) SCC 299], State of Punjab v. Baldev BA.No.2839/2018 -:4:- Singh [AIR 1999 SC 2378], Vijaysinh Chandubha Jadeja v. State of Gujarat [2011 (1) SCC 609] and Karnail Singh v. State of Haryana [2009 (8) SCC 539]. According to the learned counsel, it would result in failure of justice to insist that an accused in custody must wait until such time that the trial of the case is taken up to satisfy the court that there are reasonable grounds for believing that he is not guilty of the offence provided the necessary materials existed for the court to record such a satisfaction. According to the learned counsel, when the undisputed records produced by the prosecution shows that the procedural formalities have been blatantly violated, the applicant cannot be fastened with the unlawful possession and this was enough to make out a case that there were reasonable grounds for believing within the meaning of Section 37 of the NDPS Act that the applicant was not guilty of the offence.
5. Heard the learned Public Prosecutor, who has opposed the prayer. It is submitted that unless the applicant satisfy the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any BA.No.2839/2018 -:5:- offence while on bail, the applicant cannot be released. The learned Public Prosecutor has highlighted the deleterious effects and deadly impact of LSD and it was submitted that stringent provisions were incorporated in the Statute Book to deal with drug traffickers such as the applicant. Much reliance was placed on the decision of the Apex Court in Union of India (UOI) v. Shri Shiv Shanker Kesari [(2007) 7 SCC 798] to support his contentions. It was also submitted that the question whether or not the safeguards provided in Section 50 were observed would have to be determined by the trial court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant only for recording of an order of conviction or acquittal. The learned Public Prosecutor has also relied on the decision of the Apex Court in SUPDT., Narcotics Control Bureau, Chennai v. R. Paulsamy [200 (9) SCC 549].
6. I have considered the submissions advanced and have scrutinised the case diary.
7. The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where there are reasonable BA.No.2839/2018 -:6:- grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) of the Act is b