Kerala High Court
Muhammed Ameen vs The Narcotic Control Bureau on 29 November, 2019
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 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941
Bail Appl..No.7787 OF 2019
PETITIONERS:
1 MUHAMMED AMEEN
AGED 32 YEARS
S/O.MUHAMMED KASIM, 7/82, ADURUTHAN STREET,
KILAKARAI, RAMANATHAPURAM DISTRICT, TAMIL NADU.
2 MUHAMMED ARSATH
AGED 28 YEARS
S/O.SHAHUL HAMEED, 3/68, BARATHAR STREET, KILAKARAI,
RAMANATHAPURAM DISTRICT, TAMIL NADU.
BY ADV. SRI.BABU S. NAIR
RESPONDENTS:
1 THE NARCOTIC CONTROL BUREAU
COCHIN, REPRESENTED BY ITS INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU, SUB ZONE, COCHIN, THROUGH
ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-682031.
2 ADDL.R2 COMMANDANT/ASSISTANT COMMANDANT
CISF CONTROL ROOM, KOCHI INTERNATIONAL AIRPORT.
IS SUO MOTO IMPLEADED AS ADDITIONAL R2 AS PER ORDER
DATED 18/11/2019 IN BA-7787/2019.
R1 BY ADV. SRI.MVS.NAMBOOTHIRY
R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. No.7787/2019 2
ORDER
This application is filed under Section 439 of the Cr.P.C.
2. The applicants herein are accused Nos.2 and 3 in O.R. No. 6 of 2019 of the Narcotics Control Bureau, Cochin ("NCB" for short) registered under Section 8 (c) r/w. Section 22 (c), 23 (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS" Act for short).
3. The factual backdrop as outlined from the case records made available by the prosecuting agency are as follows:-
(a) On 6th of October 2019, at about 22.40 hours, information was received by the Intelligence Officer, NCB, Sub Zone, Kochi from the CISF Control Room, Cochin International Airport to the effect that some suspicious items akin to methamphetamine, a psychotropic substance, covered under NDPS Act, 1985 were detected during security frisking by CISF from the body of three passengers, namely, Asarat Ali bound for Kualalumpur by an Air Asia flight, and two others by name, Mohammed Ameen and Mohammed Arsath, both bound for Doha by Air India Express flight. An official request was made to examine the contraband found on the body of the passengers and further to take necessary action.B.A. No.7787/2019 3
(b) On receipt of the information, a team headed by the Intelligence Officer, NCB, Kochi was formed and he was designated as the seizing officer in case of interception.
(c) The intelligence officer along with this team reached the office of the Assistant Commandant, CISF, Cochin International Airport.
In the Security hold area, the suspects were found in the custody of CISF officials. The Assistant Commandant, Sri. Kripan C.B, was also present.
(d) The NCB officers noticed that the contraband had already been seized and the accused were standing with their hand baggage. The CISF officers handed over the suspects, the contraband allegedly seized from each of them and their hand baggage. On interrogation, they were found to be persons whose permanent place of abode was in the State of Tamil Nadu. The contraband seized by the CISF was then inspected by the NCB officers. The officers were told by the CISF that the contraband was found stitched to the inside of the underwear of each of the suspects and it was during routine frisking that was detected. The contraband was tested separately with field testing kit and it is alleged that it gave positive result for the presence of methamphetamine. Each of the sachets were separately weighed and methamphetamine found in the possession of the 1 st accused was found B.A. No.7787/2019 4 to weigh 221 gms; from the 2 nd accused to be 283 gms by weight; and from the 3rd accused to be 260 gms by weight. The contraband was sealed and labelled in accordance with law.
(e) After completing the formalities, a notice was served independently on the accused under Section 50 of the NDPS Act and they were informed of their right to be searched in the presence of a gazetted officer. The search was accordingly conducted in the presence of Sri. Kirpan C.B., the Assistant Commandant CISF. In the course of personal search, items such as boarding pass, identification cards, Indian and foreign currency, et cetera were seized from the possession of each of the accused. The items so seized were separately packed and labelled. The preparation of the mahazar commenced at 00.05 hours on 7.10.2019 and it was completed on the spot at 5.00 hours on 7.10.19. A copy of the mahazar was provided to the accused.
(f) Thereafter, summons was issued under Section 67 of the NDPS Act to the accused requisitioning their appearance before the Intelligence Officer, Kochi for recording their voluntary statements. On 8.10.2019 their statements were recorded. On the same day, at 30 minute intervals, commencing from 6 pm., the arrest of the accused were recorded. On 9.10.2019, the accused were produced before learned Judicial Magistrate of the First Class, Angamaly and were B.A. No.7787/2019 5 remanded. It also appears that a detailed inventory was prepared in the presence of the learned Magistrate.
4. Sri. Babu S. Nair, the learned counsel appearing for the applicant, submitted that no reliance whatsoever can be placed on the seizure allegedly effected from the possession of the applicants. He would refer to Annexure-A occurrence report in O.R.No.6 of 2019 and would point out that the same is a verbatim copy of the mahazar prepared by the Intelligence officer in the presence of witnesses. By referring to the mahazar prepared by the detecting officer, the learned counsel points out that when the NCB officers had arrived at the security hold area, the contraband had already been seized from the possession of all the accused. It is urged that the 1st accused was bound for Kualalumpur and the accused Nos. 2 and 3 were bound for Doha. As to where and when the security frisking was conducted, whether it was conducted jointly and whether it was after detection of contraband from one of the accused are all matters which have been suppressed. There are no materials to even show that a communication was issued by the CISF to the NCB seeking their assistance to carry out the detection and seizure. He would refer to Sections 42 and 43 of the NDPS Act and it was argued that if the CISF officer who conducted the search was empowered under Section 42, as and when he realized that the accused were carrying drugs, he should have proceeded to follow the mandatory requirements under Section 50 of the Act. If on the other hand, the CISF personnel was not empowered and on security frisking, the chance recovery of any narcotic drugs or B.A. No.7787/2019 6 psychotropic substance was noticed, then the officer should have proceeded to inform the empowered officer of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government including paramilitary forces or armed forces or of the State Government as is empowered by special or general order in that behalf and only such empowered officer could have proceeded to conduct personal search and seize the contraband.
5. The learned counsel would then point out that this is a case in which narcotics were detected from three different persons. It could not have been done simultaneously. After narcotics were detected from the 1 st accused and if there was prospects of a chance recovery from accused Nos. 2 and 3, the officer had no other go, but to scrupulously comply with the provisions of the Act. According to the learned counsel, though the provision is enacted with a view to protect society from criminals, the procedural safeguards contained in Section 50 is intended to protect a person against false accusation and frivolous charges and also to lend credibility to the search and seizure conducted by the empowered officer. He would rely on the decision of the Apex Court in State of Punjab v. Baldev Singh 1 and it was argued that the legitimacy of judicial process may come under cloud if the court ignores the acts of lawlessness committed by the investigating agency after being overwhelmed by the severity of the accusations. According to the learned counsel, the severer the punishment, the greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.
1 [AIR 1999 SC 2378] B.A. No.7787/2019 7
6. The learned counsel would then point out that if the entries in the mahazar are taken as such, the same is seen prepared at 00.05 hrs on 7.10.2019. The contraband had already been detected from the inside of the underwear of the accused. The mahazar shows that the search and seizure proceedings concluded at 00.05 hrs. on 7.10.2019. However, the accused were arrested on 8.10.2019 at 6 pm, 6.30 pm and 7 pm respectively. They were later produced before the learned Magistrate on 9.10.2019 at about 5.30 pm. According to the learned counsel, as to what had transpired prior to 00.05 hrs. on 7.10.2019 is anybody's guess. He would also contend that if the contraband had been seized prior to 00.05 hrs on 7.10.2019, there was no reason why the arrest of the accused was deferred till 6 pm. to 7 pm on 8.10.2019. The delay in production before the learned Magistrate is also unexplained, submits the learned counsel. The statutory as well as constitutional rights of the applicants have been violated by the NCB, contends the learned counsel.
7. Sri.Babu S. Nair would then point out that not even a scrap of paper evidencing what had taken place prior to 00.05 hrs on 7.10.2019 is produced before the court by the detecting agency. According to the learned counsel, the sequence of events would throw serious doubts on the very case of the prosecution as it is common knowledge that officers of the Departments of Customs, Central Excise and Revenue are all present in the Air Port and the CISF personnel could easily have secured their assistance before conducting personal search of the accused. He would refer to the mahazar and invited this Court to certain discrepancies in the same. B.A. No.7787/2019 8 According to the learned counsel, the bar under Section 37 of the NDPS Act will not be an impediment in a case of this nature as the discrepancies in the records are of such a nature that it would be impossible to conclude even prima facie that the applicants can be held guilty of the offence allegedly committed by them. Relying on a decision of this Court in Basant Balram V State of Kerala2 it was submitted that it would result in gross travesty 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 when there are ample materials before court to record such a satisfaction. According to him, when the undisputed records produced by the prosecution show 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 that he is not guilty of the offence within the meaning of Section 37 of the NDPS Act. Reliance is also placed on the decisions of the Apex Court in Union of India v. Thamisharashi 3 , State of Punjab v. Baldev Singh 4 , State of Rajasthan v. Paramanand5 , Sarija Banu Alias Janarthani Alias Janani v. State Through Inspector of Police6, State of Punjab v. Balbir Singh7, Vijaysinh Chandubha Jadeja v. State of Gujarat 8 and Karnail Singh v. State of Haryana9 to bolster his submissions.
2 (2019 SCC OnLine Ker 531) 3 (1995) 4 SCC 190 4 (1999) 6 SCC 172 5 (2014) 5 SCC 345 6 (2004) 12 SCC 266 7 (1994) 3 SCC 299 8 (2011) 1 SCC 609 9 (2009) 8 SCC 539 B.A. No.7787/2019 9
8. Sri.M.V.S.Namboothiri, the learned counsel appearing for the NCB, refuted the submissions advanced by the learned counsel appearing for the applicants. He would point out that huge quantity of a prohibited psychotropic substance was found concealed by the accused and this was noticed only during security frisking by the CISF personnel. According to the learned counsel, the CISF personnel are not empowered under Section 42 of the Act and it being a chance recovery, the NCB was informed without any delay. He would point out that every person, regardless of their nationality and purpose of visit, who enters the Airport is routinely frisked by the CISF to detect the presence of prohibited substances. If during routine frisking, any prohibited substance is found, it would be seized by the frisking agent and there would not be any occasion for them to wait until the authorized officer reaches the spot. In that view of the matter, the accused cannot contend that the provisions of the NDPS Act has been violated, submits the learned counsel.
9. The learned counsel would further urge that the contraband which was seized, was tested by the detecting officer to confirm that it was indeed a prohibited substance. Thereafter, it was sealed and labelled by the detecting officer and he proceeded to record the statement of the accused under Section 67 of the NDPS Act, 1985 for which summons was issued to them. It was after recording the statement that the arrest of the accused were recorded at 30 minute intervals commencing from 6.00 pm on 8.10.2019. Within 24 hrs. of recording the arrest, the accused were produced before the learned Magistrate. In view of the above, the contention B.A. No.7787/2019 10 advanced by the learned counsel regarding violation of Section 56 and 57 of the Cr.P.C. or under Article 22(2) of the Constitution of India has no basis.
10. It is then submitted that that the parameters laid down in Section 37 of the NDPS Act, 1985 will have to be satisfied as the quantity seized is commercial in nature. Highlighting the deleterious effects and deadly impact of the substance seized from the possession of the applicant, it is submitted that the legislature has included Section 37 in the NDPS Act to deter such nefarious activities by traffickers such as the applicants. According to the learned counsel, bail can be granted only in those cases wherein there are reasonable 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. The learned Public Prosecutor referred to the decisions of the Apex Court in Union of India (UOI) v. Shri Shiv Shanker Kesari10 and Union of India v. Ram Samujh and Another 11 to support his contentions.
11. Sri. M.V.S. Nampoothiri would also urge that the submission of the learned counsel as regards the non compliance of Section 50 of the NDPS Act is also meritless. He would contend that, the detection of the drug being during routine frisking operations in the Airport, it has to be regarded as a chance recovery, and no advantage can be taken by the applicants alleging non compliance. He would also rely on the decision in SUPDT., Narcotics Control Bureau, Chennai v. R. Paulsamy12 10 (2007) 7 SCC 798 11 (1999) 9 SCC 429 12 (2000) 9 SCC 549 B.A. No.7787/2019 11 and it was contended that the question of non-compliance of mandatory formalities need not to be considered at the stage of deciding the bail application in view of Section 37 of the Act. Reliance is also placed on the observation made by a Constitution Bench of the Apex Court in State of Punjab V Baldev Singh13 to bring home his point that the question whether the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial and not prior thereto. The learned counsel would also submit that statements of the applicants herein were recorded under Section 67 of the NDPS Act, wherein they have detailed the manner in which they had procured the drugs and had indulged in drug trafficking. He points out that the applicants are persons having links with the international drug mafia and the investigating agency is sparing no effort to find out the source of the drugs and bring the culprits to justice.
12. After hearing in extenso, the learned counsel appearing for both sides, it was felt that the CISF was also a necessary party in this proceeding as the case diary which was made available did not reveal as to what had transpired prior to 00.05 hours on 7.10.2019. This Court, by order dated 18.11.2019, suo moto impleaded the Commandant/ Assistant Commandant, CISF Control Room, Kochi International Airport as additional respondent.
13. Sri. Suvin R. Menon, the learned Central Government standing counsel, submitted that the contentions advanced by the learned counsel challenging 13 [1999 (6) SCC 172] B.A. No.7787/2019 12 the procedure adopted by the CISF inside the Airport are merit less. It is submitted by the learned standing counsel that after certain incidents which including hijacking of Aircrafts, the security of Indian Airports was augmented and the CISF has taken over the security replacing the state police forces. The security measures inside and outside the Airports, pre-embarcation security checks etc. are carried out by the CISF in terms of the Aircraft (Security) Rules, 2011. Referring to the Rules, the learned counsel submits that the CISF is authorized as the 'Aviation Security Group' to safeguard civil aviation against acts of unlawful interference. The Rules prohibit persons who frequent the Airport from carrying prohibited substance without proper declaration of the same. The CISF is also empowered to carry out "security control' by which the introduction of weapon, explosive, or any other dangerous device, article or substance are prevented. Before entering into security restricted area, the aviation security group shall screen every person, vehicle, baggage, belongings or supplies for which they need not bank on the general provisions of the Code of Criminal Procedure which provides for the procedure to be followed before carrying out search of a person. According to the learned counsel, in the case on hand, the 1 st accused was found carrying some substance in his undergarments and he was intercepted. The search of his person yielded in the detection of a crystal like substance and it was felt that it was a psychotropic substance. On interrogation and on perusal of the CCTV showing his entrance into the Airport, it was revealed that two persons were accompanying him. The identity of the companions of the detained person was ascertained and it was revealed that they had managed to clear the security screening B.A. No.7787/2019 13 and had already boarded the Aircraft. Alarm bells started ringing and without sparing any time, the accused Nos. 2 and 3 were offloaded from the Aircraft. The CISF personnel were not aware that the accused Nos. 2 and 3 were carrying any drugs as the 1st accused did not divulge the said fact. It was under the impression that the accused Nos. 2 and 3 managed to escape screening that they were offloaded from the Aircraft. A routine security check was again conducted and it was revealed that the accused Nos. 2 and 3 had also concealed prohibited substances inside their undergarments. If the accused Nos. 2 and 3 were clean, they had to be re-boarded as the flight bound to Doha was in the runway. According to the learned counsel, the detection of contraband from accused Nos. 2 and 3 was also a chance recovery and there was no occasion for obtaining the services of a Gazetted officer prior to body search under Section 50 of the Act. Immediately thereafter, the NCB personnel were alerted by issuing a communication and when the officers arrived, the accused as well as the contraband was handed over. He would further contend that the investigation is still in the early stages and the NCB has sought for materials evidencing the transactions that had taken place prior to their arrival. All details regarding what had transpired in the Airport will be duly handed over to the NCB is the submission.
14. I have considered the submissions advanced and have anxiously gone through the case records which have been made available by the learned counsel appearing for the NCB.
15. The NDPS Act, 1985 was enacted to consolidate and amend the law B.A. No.7787/2019 14 relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object of the Act, Section 37 of the Act, in negative terms limits the scope of the applicability of the provisions of the Code of Criminal Procedure regarding bail. The object of the Act is to completely curb and put a ban on the use, consumption, sale, purchase and possession of narcotics and psychotropic substances.
Section 37 reads as follows:
37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 27A 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 B.A. No.7787/2019 15 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.
16. Interpreting the provisions of Section 37, the Hon'ble Supreme Court in Union of India v. Shiv Sankar Kesari14 had occasion to observe as follows:
"6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.
7. The expression used in S.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 14 [2007(7) SCC 798] B.A. No.7787/2019 16 that the accused is not guilty of the offence charged.
8. The word 'reasonable' has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. (See -- Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Another, AIR 1987 SC 2316 and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and Another, AIR 1989 SC 973).
9. It is often said 'an attempt to give a specific meaning to the word 'reasonable' is trying to count what is not number and measure what is not space'. The author of Words and Phrases' (Permanent Edition) has quoted from in re Nice & Schreiber, 123 F. 987, 988 to give a plausible meaning for the said word. He says, 'the expression 'reasonable' is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'. It is not meant to be expedient or convenient but certainly something more than that.B.A. No.7787/2019 17
10. The word 'reasonable' signifies 'in accordance with reason'. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See -- Municipal Corporation of Greater Mumbai and Another v. Kamla Mills Ltd., 2003 (6) SCC 315.
11. The Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."
17. In other words, the non obstante clause in the Section and sub-s. (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under S.439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub clause (b) of sub-section (1) of S.37 of the NDPS Act. Apart from giving an B.A. No.7787/2019 18 opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both the aspects noted above, is sine qua non for granting of bail under the NDPS Act. (see Union of India v. Rattan Mallik @ Habul [2009 (2) SCC 624].
18. In the above backdrop, the submissions of the learned counsel can be considered. The main contention advanced by the learned counsel is regarding the violation of the provisions of Section 50 of the NDPS Act. Under Section 50 of the Act mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 42 shall take such person without unnecessary delayed to the nearest Gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. It is by now settled that it is B.A. No.7787/2019 19 obligatory on the part of the officer to inform the person of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a Magistrate. It is also settled by now that if during such search or arrest, there is a chance recovery of any narcotic drugs and psychotropic substances, then the officer who is not empowered is required to inform the empowered officer who has to thereafter proceed in accordance with the provisions of the Act. If he happens to be an empowered officer, then from that stage onwards, he is required to carry on the investigation in accordance with the provisions of the Act.
19. In the case on hand, the detection was on 6.10.2019. There is some merit in the submission of the learned counsel appearing for the applicant that in the mahazar or in the occurrence report, there are no materials to show what had actually transpired in the Airport during frisking operations. However, as rightly submitted by the Central Government Standing counsel, the investigation has just only commenced and the entire records including the CCTV footage of the interception is available with the CISF. At this stage, this Court will not be justified in doubting the seizure which took place in a high security area of the International Airport. Furthermore, as held by the Apex Court in Paulsamy (supra), this Court will have take into account the factual presumption in law that official acts have been regularly performed. I therefore proceed on the basis of the available materials which shows that the 1 st accused was routinely screened by the officer of the Aviation Security Group during security check. He was found having concealed a crystal like substance inside his underwear. On B.A. No.7787/2019 20 interrogation, he is alleged to have disclosed that he was not alone. The CCTV footage also showed that two others were travelling with him. Since it was felt that they had escaped security check and had boarded the Aircraft, they were offloaded to ascertain as to whether they were clean. A repeat security check was conducted and it was found that they were also carrying identical substance. The substances were checked and it was found to be a psychotropic substance. The NCB was alerted and they took over the investigation as per their procedure.
20. Now the question is whether in the facts and circumstances, it can be said that the provisions of Section 50 has been violated. In State of Himachal Pradesh v. Sunil Kumar15, the Hon'ble Supreme Court had occasion to hold that in case of chance recovery, Section 50 of the Act may not have any application. Relying on Mohinder Kumar v. State, Panaji, Goa 16, it was held that chance recovery is one when a police officer stumbles on narcotic drugs when he makes a search. It was held that mere suspicion, even if it is positive suspicion or grave suspicion cannot be equated with 'reason to believe'. It was also held that the positive suspicion entertained by an officer cannot be equated with prior information as contemplated under Sections 41, 42 and 43 so as to attract the provisions of Section 50 of the Act. In the case on hand, I am inclined to hold that insofar as the 1 st accused is concerned, it was a case of chance recovery as frisking is routinely conducted during security check in the Airport for security purposes. It would not be possible to conclude that 15 [AIR 2014 SC 2564] 16 [1995 SC 1157] B.A. No.7787/2019 21 Section 50 would have any application whatsoever in the instant case. Insofar as the applicants herein are concerned, they had cleared the security check and it was purely based on a suspicion that they had escaped screening that they were offloaded from the Aircraft and a repeat screening was conducted. It is not possible to accept the submission of the learned counsel that the CISF personnel had a reason to believe that the accused were carrying contraband. It can only be a chance recovery of Methamphetamine. At any rate, the contention advanced by the learned counsel regarding non compliance of the provisions of the NDPS Act cannot be adjudged at this particular stage. As held by the Apex Court in Paulsamy (supra), these are matters which could be established only at the stage of trial. Furthermore, in Baldev Singh (supra) it was held by the Constitution Bench that as to whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial and not at the commencement of investigation.
21. The learned counsel has pointed out certain discrepancies in the mahazar. He brought to the attention of this Court that in the mahazar it has been recorded that the statement under section 67 of the Act was recorded on 7.10.2019. However, I find from the case records that the statement of the accused under Section 67 was recorded on 8.10.2019 and it appears to be an inadvertent error. Much argument was also advanced by the learned counsel that the contemporaneous records prepared by the CISF was not made available to the accused. The B.A. No.7787/2019 22 investigation being in the early stages, I am not impressed with the said condition either.
22. Criminal networks traffic a range of drugs including cannabis, cocaine, heroin and methamphetamine. As international borders become increasingly porous, global abuse and accessibility to drugs have become increasingly widespread. This international trade involves growers, producers, couriers, suppliers and dealers. It affects almost all the countries by undermining political and economic stability, ruining the lives of individuals and damaging communities. The end-users and addicts are often the victims of a powerful and manipulative business. Drug trafficking is often associated with other forms of crime, such as money laundering or corruption. Trafficking routes can also be used by criminal networks to transport other illicit products. As held by the Apex Court in Baldev Singh (supra), drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including terrorist activities. Drug trafficking, trading and its use have become a global phenomena and has acquired the dimensions of an epidemic. It affects the economic policies of the State, destroys the young and healthy and corrupts the system.
23. In that view of the matter , while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of B.A. No.7787/2019 23 being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level.
24. Having carefully weighed all the contentions advanced before this Court and after perusing the records, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. Furthermore , it would not be possible to conclude that the applicants are not likely to commit any offence while on bail. I hold that the applicants have not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged.
This application will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE PS/27/11/2019