Kerala High Court
Basanth Balram vs State Of Kerala on 1 February, 2019
Equivalent citations: AIRONLINE 2019 KER 819, (2019) 1 KER LT 523 (2019) 2 RECCRIR 488, (2019) 2 RECCRIR 488
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 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940
Bail Appl..No. 8553 of 2018
CRIME NO.35/2018 OF PEERMADE EXCISE RANGE OFFICE, IDUKKI
PETITIONER/2nd ACCUSED:
BASANTH BALRAM, AGED 32 YEARS,
S/O.BALARAMAN, KOORKKANCHERY KARA,
KOORKKANCHERY VILLAGE, THRISSUR - 680 021.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.POOJA PANKAJ
SRI.AJEESH K.SASI
SRI.M.REVIKRISHNAN
SRI.P.M.RAFIQ
SRI.VIPIN NARAYAN
SRUTHY N. BHAT
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
OTHER PRESENT:
SRI. ANAS K. A. - PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2019,
ALONG WITH Bail Appl..8857/2018, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
B.As.8553 & 8857 of 2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940
Bail Appl..No. 8857 of 2018
CRIME NO. 35/2018 OF PEERMADE EXCISE RANGE OFFICE, IDUKKI
PETITIONER/1ST ACCUSED:
MUHAMMED SHEBEER, AGED 33 YEARS
S/O ASSAN KUTTY, LOVEDALE HOUSE,
NADUVANNUR KARA, NADUVANNUR VILLAGE,
QUILANDY TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.
BY PUBLIC PROSECUTOR SRI.ANAS K.A.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01.02.2019, ALONG WITH Bail Appl..8553/2018, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
B.As.8553 & 8857 of 2018 3
ORDER
These applications are filed under Section 439 of the Cr.P.C.
2. The applicants herein are the accused Nos.1 and 2 in Crime No. 35 of 2018 of the Excise Range Office, Peermade, registered under Sections 22(c), 8(c), 20(b)(ii)A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'NDPS Act'). They were arrested in connection with the aforesaid crime on 9.10.2018.
3. The brief facts, which led to the registration of the above crime, can be recapitulated as follows:-
On 9.10.2018, the Excise Inspector, Excise Range Office, Peermade, was engaged in the inspection of vehicles plying along the Vagamon-Irattupetta road. A Hyundai Creta car bearing Registration No.KL-42 N-9333 driven by two young men were intercepted. The 1 st accused was driving the vehicle and the 2 nd accused was sitting in the front passenger seat. A search of the cabin of the vehicle was B.As.8553 & 8857 of 2018 4 conducted in the presence of two independent witnesses. When the detecting officer opened the dash board of the car, two small plastic covers were found inside along with records relating to the vehicle. The covers were opened and it was found that it contained narcotic substances. One cover contained ganja and the other contained charas. He then decided to conduct search of the person under Section 50 of the NDPS Act. Separate notices were served purportedly at 3.45 p.m informing them of their right to be searched in front of a Gazetted officer. The Circle Inspector of Excise, Peermedu, who was on patrol duty came to the spot and he was requested to witness the search. In his presence, a search of the body of the 1 st accused was conducted. From his rear trouser pocket, a purse was seized and on examination, along with other items, 23 numbers of LSD stamps were found. The same was seized as per law. Thereafter, a search of the person of the 2nd accused was carried out after serving him with a notice under Section 50 of the Act. From a purse kept in the rear trouser pocket, 29 numbers of LSD stamps were allegedly seized. An officer was sent to a nearby Jewelry and a weighing balance was brought to the spot. The B.As.8553 & 8857 of 2018 5 contraband articles were weighed. The accused were identified and their arrest was recorded. The crime and occurrence report was prepared and it was forwarded to the jurisdictional court. The accused were remanded and they remain in custody.
4. Sri.Nireesh Mathew, the learned counsel appearing for the 1st accused contended that the detection, seizure, arrest and investigation are tainted and no reliance can be placed on the prosecution records. According to the learned counsel, the very prosecution records would reveal that the accused were framed in the instant case by manipulating the records. It is further submitted that the detection was vitiated for various reasons and it is evident that a conscious effort was taken by the officer concerned to manipulate the various contemporaneous documents that were prepared by him at the time of detection and seizure.
5. The learned counsel would refer to the mahazar dated 9.10.2018, which was prepared contemporaneously with the seizure, B.As.8553 & 8857 of 2018 6 and pointed out that the said mahazar was prepared at 5.00 pm. He would refer to the descriptions in the mahazar and contended that it was after the alleged detection of ganja and charas from the dashboard of the car that the officer has decided to conduct a personal body search of the accused as contemplated under Section 50 of the NDPS Act. He would then refer to Annexure-A notice produced by him and contended that even in the notice issued under Section 50 of the Act, purportedly at 3.45 p.m, informing the accused of their right to be searched in front of the Gazetted officer, it has been mentioned that 23 LSD stamps have already been seized from the possession of the accused. This would show that the issuance of notice was a farce and that the alleged contraband had been seized even before the Gazetted officer was brought to the spot. The learned counsel would then refer to Annexure-E arrest memo and pointed out that the accused is seen arrested at 3.30 p.m. on 9.10.2018, much prior to even the interception of the car. He would then refer to Annexure-D occurrence report and would persuasively argue that in the said report, the time of arrest of the 1st accused is mentioned as 4.45 pm and that of the 2 nd B.As.8553 & 8857 of 2018 7 accused at 4.50 p.m. This is at variance from the time noted in the arrest memo. It is urged by the learned counsel that fair investigation and fair trial is the cornerstone of a democratic society and when the records reveal that evidence was obtained by throwing the procedural safeguards to the winds, the benefit of the same will have to be extended to the accused. He would urge that when it is apparent that the search of the person of the accused was committed by blatantly violating Section 50 of the Act, the prosecution cannot be permitted to take refuge to the stringent provisions of the Act, to deny them bail. Prejudice of a grave variety has been caused to the accused is the contention. According to the learned counsel, severe the punishment, greater has to be the care taken to see that all the safeguards provided in the statute are scrupulously followed.
6. Sri.Vipin Narayanan, the learned counsel appearing for the 2nd accused, has reiterated the submissions of the learned counsel appearing for the 1st accused. He would contend that the legitimacy of the entire judicial process may come under a cloud if the Court is seen B.As.8553 & 8857 of 2018 8 to condone acts of lawlessness conducted by the investigating agency during search operations and it may also undermine respect for the law which may have the effect of unconscionably compromising the administration of justice. According to the learned counsel, the question is not as to whether the mandatory provisions under the Act have been violated or not. On the other hand, the prosecution records would blatantly show that a conscious effort was made by the detecting officer to concoct false evidence with a view to trap the petitioners in an offence which they had not committed. The entire prosecution records are fraught with discrepancies and this Court will be well justified in perusing the records to satisfy itself to assess the probabilities. He would place heavy reliance on a decision of this Court in V.K. Asokan & Others etc. v. State of Kerala (1998 Crl.L.J 1322) to substantiate his contention. He would also contend that the records would reveal that personal search was conducted prior to the issuance of notice under Section 50 of the Act and the arrest was also recorded prior to the seizure. The 2nd accused has also produced his arrest memo and it is pointed out that it would show that he was arrested at B.As.8553 & 8857 of 2018 9 3.30 p.m. on 9.10.2018, which is even prior to the detection. The learned counsel would then refer to the decisions of the Apex Court in Union of India v. Thamisharashi and Others [(1995) 4 SCC 190], State of Punjab v. Baldev Singh [(1999) 6 SCC 172], State of Rajasthan v. Paramanand and Another [(2014) 5 SCC 345], 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], Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] and Karnail Singh v. State of Haryana [(2009) 8 SCC 539] and it was contended that the bar under Section 37 of the Act will not be an impediment if the accused is able to show on the basis of prosecution records that there are reasonable grounds for believing that he is not guilty of the offence. According to the learned counsel, 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 B.As.8553 & 8857 of 2018 10 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.
7. The learned Public Prosecutor has opposed the prayer. It is submitted that LSD is a deadly narcotic drug and huge quantity of the prohibited drug was seized from the possession of the accused. According to the learned Public Prosecutor, the discrepancies pointed out by the learned counsel will not in any way affect the case of the prosecution at this stage. He urges that this Court will not be justified in conducting a roving inquiry to ascertain whether there has been violation of the provisions of the Act, particularly at the stage of hearing the bail applications. The applicants, according to the learned Public Prosecutor, have not been able to show that there are reasonable grounds for believing that they are not guilty of the offence or that they are not likely to commit any offence while on bail. Much B.As.8553 & 8857 of 2018 11 reliance is 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 is also submitted that the question whether or not the safeguards provided in Section 50 of the Act were observed would have to be determined by the trial court on the basis of the evidence let in 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 [(2000) 9 SCC 549] to substantiate his submission. He would also refer to the decision of the Apex Court in Baldev Singh (supra) and it is contended that the question of whether the safeguards provided in Section 50 has been duly observed, would have to be determined by the trial court on the basis of evidence led at the trial.
8. I have considered the submissions advanced and have perused the entire case diary.
B.As.8553 & 8857 of 2018 12
9. The NDPS Act, 1985 was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The Apex Court had occasion to consider the provisions of the Act in a catena of cases. It has been observed time and again that the object of the Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided, which in the context, have to be observed strictly.
10. In Raju v. State of W.B., (2018) 9 SCC 708], the Apex Court had occasion to observe as follows, in paragraph 16 of the report:
"16. In Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609], a Constitution Bench of this Court interpreted Section 50 thus: (SCC pp. 617-18 & 622, paras 20, 29 & 31) "20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till B.As.8553 & 8857 of 2018 13 the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so.
***
29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law- enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
11. It is thus clear that the legislature envisaged that the provisions are to be strictly observed to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law-enforcement agencies. It would thus be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted officer or a B.As.8553 & 8857 of 2018 14 Magistrate and the procedure contemplated under the Act are to be strictly followed. As held in a catena of decisions, the failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.
12. Keeping the legislative intent and the pronouncement of the Apex Court in mind, I have scanned the entire materials which were made available. Certified copies of the mahazar prepared at the time of seizure, the arrest memo of both the accused and the respective notices issued prior to search of the person under Section 50 have been placed before this Court. The mahazar would show that the car was intercepted at 5 p.m. on 9.10.2018. After intercepting the car as aforesaid, a search was conducted inside the vehicle. Small quantities of ganja as well as charas were allegedly seized from the dash board. It was then that the detecting officer decided that the search of the person of the accused had to be conducted. They were B.As.8553 & 8857 of 2018 15 verbally informed of their rights to be searched before a Gazetted officer or a Magistrate. A notice was also issued to them prior to conduct of search. It does not appear from the mahazar that they were granted an opportunity to demand that they required to be searched in front of a Magistrate or a Gazetted officer. The Circle Inspector of Excise, Peermade, who was patrolling nearby, reaches the spot and the search of person was conducted in his presence. The 1 st accused was first searched and 23 LSD stamps were seized from his trouser pocket. Thereafter, the search of the person of the 2nd accused was held and 29 LSD stamps were seized from his trouser pocket. These articles were seized and it was thereafter that the accused was arrested. Later, the contraband articles were sampled and sealed in accordance with law.
13. If this is the sequence of events, it is difficult to comprehend as to how in the notice issued to the accused purportedly at 3.45 pm, that too prior to search of their person, and prior to even intercepting the car, the detecting officer would be able to mention the exact number and details of the LSD stamps which were seized from B.As.8553 & 8857 of 2018 16 their possession. The certified copies of the arrest memo produced before this Court will make the whole search and seizure even more suspicious. The arrest memo of both the accused reveals that they were arrested at 3.30 p.m. on 9.10.2018. As to how the accused were arrested 15 minutes prior to the issuance of a notice under Section 50 of the NDPS Act is an even bigger mystery. The said sequence of events is totally at variance with the descriptions in the mahazar, wherein it is stated that it was after seizure of the LSD that the accused were arrested.
14. The safeguards provided under the Statute is to ensure that persons are searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. Very severe punishment are provided under the Act for mere possession of illicit drugs and narcotic substances. Personal search is a critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. A procedure based on systematic and B.As.8553 & 8857 of 2018 17 unconscionable violation of law by the official responsible for the enforcement of law cannot be considered to be a fair, just or reasonable procedure. As held by the Apex Court, the more severe the punishment, greater has to be the care taken to ensure that all the safeguards provided in a statute are scrupulously followed. In the case on hand, it is blatantly obvious that the statutory safeguards have been thrown to the winds by the detecting officer. The uncontrovertible materials in the form of certified copies obtained from the court below clearly show very serious aberrations in the search and detection of the contraband.
15. I am also not impressed with the contention of the learned counsel that despite the production of such materials, this Court should refrain from considering the same at this particular stage and relegate the same to be considered by the trial court. In the case on hand, it is not a question as to whether the applicants were informed of their rights or whether the search required compliance under Section 50 of the Act. The question here is with regard to the very B.As.8553 & 8857 of 2018 18 truthfulness and sustainability of the search and seizure effected by the detecting officer on 9.10.2018.
16. As held by the Apex Court in Baldev (supra), the safeguards contained in Section 50 of the NDPS Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. It was held that though the end result is important, but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. It was observed that the cure cannot however, be worst than the disease itself.
B.As.8553 & 8857 of 2018 19
17. The applicants have been in custody from 9.10.2018 and when they are able to show that there are materials to suspect the very seizure and the provisions of the Act have been blatantly violated, this Court will not be justified in rejecting their submissions and in ordering them to undergo incarceration till their case is finally decided.
18. Of course, bail can be granted in a case involving commercial quantity of narcotic drugs only when it is shown that 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. It is manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is "reasonable grounds" which 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 B.As.8553 & 8857 of 2018 20 recording of satisfaction that the accused is not guilty of the offence charged. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also 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 conclusion. [See Shiv Shanker Kesari (supra)].
19. In the instant case, when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial. I am of the view that it would result in failure of justice to force the applicants to be in custody till the trial is complete. The court's satisfaction within the B.As.8553 & 8857 of 2018 21 meaning of sub-section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 235 of the Cr.P.C. Such a finding of guilty or not guilty can only be rendered after conclusion of the trial whereas the satisfaction that there are reasonable grounds for believing that the accused is not guilty as to be arrived at before the conclusion of trial, i.e., at any stage of investigation or in the course of trial itself. This Court cannot abdicate from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction.
B.As.8553 & 8857 of 2018 22
20. Now the question is whether this Court will be justified in holding that the applicants herein are not likely to commit any offence while on bail. The prosecution has no case that the applicants are persons with criminal antecedents or that they are involved in similar offence earlier.
21. Since I am prima facie satisfied that the seizure has been effected in contravention of mandatory provisions of Section 50 and as the contention of the applicants that a false case has been foisted by the detecting officer cannot be totally brushed aside, for the limited purpose of consideration of this application, it is held that this Court is satisfied that there are reasonable grounds for believing that the applicants are not guilty of such offence and that they are not likely to commit any offence while on bail. I also take into consideration the period of detention undergone, the stage of investigation and the reasonable possibility of securing the presence of the applicants at the time of trial. Having considered all the relevant aspects, I am of the view that the applicants can be enlarged on bail on stringent B.As.8553 & 8857 of 2018 23 conditions. Before concluding, it is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and any opinion expressed above shall not be regarded as an opinion on merits during trial.
In the result, this application will stand allowed. The applicants shall be released on bail on their executing a bond for Rs. 2,00,000/- (Rupees Two lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions:
1). The applicant shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for three months or till final report is filed, whichever is earlier.
2). They shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.
3). They shall not commit any offence while they are on bail.
4). The applicants shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicants shall be at liberty to move appropriate application before the Court having jurisdiction. B.As.8553 & 8857 of 2018 24
In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.
SD/-
RAJA VIJAYARAGHAVAN V.,
JUDGE
KRJ
//TRUE COPY P.A.TO JUDGE