Kerala High Court
Muhammed Ameen vs The Narcotic Control Bureau on 27 January, 2020
Equivalent citations: AIRONLINE 2020 KER 1383
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
Bail Appl..No.35 OF 2020
O.R.NO.6/2019 OF THE NARCOTIC CONTROL BUREAU, COCHIN
PETITIONERS/ACCUSED NOS.2 & 3:
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
RESPONDENT/COMPLAINANT:
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-682 031.
SRI M. V. S NAMBOOTHIRY SPL PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.35 OF 2020 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). They were arrested in connection with the aforesaid Crime on 9.10.2019. The application for regular bail filed by the applicants as B.A.No.7787/2019 was dismissed by this Court by a detailed order on 29.11.2019. Later, they moved another application for post-arrest bail as B.A.No.9161/2019, which was dismissed by this Court by order dated 17.12.2019. They have yet again approached this Court contending that they are innocent and seeking regular bail.
3. Brief facts of the case necessary to be noticed for deciding this petition are that 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 Bail Appl..No.35 OF 2020 3 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, viz., 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. 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.
4. The Intelligence Officer along with his 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. 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 Bail Appl..No.35 OF 2020 4 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 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. 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, etc. 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.
Bail Appl..No.35 OF 2020 5
5. 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 was recorded. On 9.10.2019, the accused were produced before learned Judicial Magistrate of the First Class, Angamaly and were remanded. It also appears that a detailed inventory was prepared in the presence of the learned Magistrate.
6. Sri. Babu S. Nair, the learned counsel appearing for the applicants, submitted that the applicants are totally innocent. According to the learned counsel, even as per the mahazar prepared by the detecting officer, the NCB officers had arrived at the security hold area, after the seizure was effected. As to what had transpired in the Airport prior to the NCB officers arriving at the scene is not known. According to the learned counsel, 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 check was conducted, whether it was conducted jointly and whether it was after detection of contraband from one of the accused, as to why the mandatory formalities under Section 50 of the Act were Bail Appl..No.35 OF 2020 6 not complied with etc. are matters which need to be considered particularly when the issue is with regard to the continued incarceration of the accused for more than 120 days. 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 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. 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 Bail Appl..No.35 OF 2020 7 accused and if there were 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 Singh1 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. 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, 1 [AIR 1999 SC 2378] Bail Appl..No.35 OF 2020 8 6.30 pm and 7 pm respectively. They were later produced before the learned Magistrate on 9.10.2019 at about 5.30 pm. 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, asserts the learned counsel.
7. The learned counsel 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. He would refer to the mahazar and invited this Court to certain discrepancies in the same. 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 Kerala 2 it is 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 2 (2019 SCC OnLine Ker 531) Bail Appl..No.35 OF 2020 9 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. Paramanand 5, Sarija Banu Alias Janarthani Alias Janani v. State Through Inspector of Police 6, State of Punjab v. Balbir Singh 7, Vijaysinh Chandubha Jadeja v. State of Gujarat8 and Karnail Singh v. State of Haryana 9 to bolster his submissions.
8. Sri.Babu S. Nair would then point out that when the 1 st application was dismissed by this Court, this Court had heard the learned Central Government Standing Counsel for and on behalf of the 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 Bail Appl..No.35 OF 2020 10 CISF and it was held that the investigation being in the early stages, some more time need be given to the NCB to collect the materials and evidence of the incident which took place prior to them reaching the airport. According to the learned counsel, this Court was inclined to grant an unnecessary leeway to the detecting agency by holding that the official acts are required to be presumed as regularly performed. However, the violations are very striking and cannot be ignored, contends the learned counsel. He would then contend that 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 is 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 unconscionable violation of law by the official responsible for the enforcement of law cannot be considered to be a fair, just or reasonable procedure. 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. He would forcefully urge that in the case on hand, it is blatantly obvious that the Bail Appl..No.35 OF 2020 11 statutory safeguards have been thrown to the winds by the detecting officer.
9. 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 prohibited psychotropic substances were 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 checked by the CISF to detect the presence of prohibited substances. If during security check, any prohibited substance is found, it would be seized by the officer 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 have been violated, submits the learned counsel.
10. The learned counsel would further urge that the contraband which was seized was tested by the detecting officer to confirm that it Bail Appl..No.35 OF 2020 12 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 for which summons was issued to them. It was after recording the statement that the arrest of the accused was 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 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.
11. 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 applicants, 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 Bail Appl..No.35 OF 2020 13 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. 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 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.
12. I have considered the submissions advanced by the learned 10 (2007) 7 SCC 798 11 (1999) 9 SCC 429 12 (2000) 9 SCC 549 13 [1999 (6) SCC 172] Bail Appl..No.35 OF 2020 14 counsel. It has to be stated at this juncture that this is the third in a series of applications filed by the applicants. They were arrested on 9.10.2019 and they have been in custody for over 120 days.
13. 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 jurisdiction of the court to grant bail to the accused is circumscribed by the provisions of Section 37 of the Act. 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.
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 Bail Appl..No.35 OF 2020 15 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 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.
14. Interpreting the provisions of Section 37, the Hon'ble Supreme Court in Union of India v. Shiv Sankar Kesari 14 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 14 [2007(7) SCC 798] Bail Appl..No.35 OF 2020 16 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 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 Bail Appl..No.35 OF 2020 17 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.
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 Bail Appl..No.35 OF 2020 18 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."
15. 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 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 Bail Appl..No.35 OF 2020 19 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].
16. In the case on hand, the detection was on 6.10.2019. There is absolutely no materials in the case diary which gives an indication as to what had transpired in the Security hold area of the Airport prior to the arrival of the officials of the NCB just after mid night on 7.10.2019. It is pertinent to note that the seizure was effected from the 1st accused by the CISF officers and later, the accused Nos. 2 and 3 who had already boarded the flight were offloaded by the CISF and a body search was conducted and the contraband was allegedly seized. While considering the application for Bail Appl..No.35 OF 2020 20 bail filed at the first instance, this Court accepted the submission of the Central Government counsel that the investigation had only commenced and that the entire records including the CCTV footage of the interception which is available with the CISF would be handed over to the NCB. The records show that when the NCB officers had reached the spot, the accused were seen in the presence of Sri.Kripan as well as Hari Om, the Inspector of the CISF. The drugs had already been seized from their possession by the CISF personnel. The seized drugs were sampled by the NCB officers in the presence of the CISF personnel. It was also found from the mahazar after seizing the drugs which had already been seized by the CISF, a body search was conducted in the presence of a gazetted officer, who is none other than Sri.Kripan, the Asst. Commandant. Certain personnel items were seized from the possession of the accused. Later, their statement was recorded under Section 67 of the NDPS Act and thereafter they were produced before the jurisdictional court. Though there were several discrepancies, since the investigation was in the preliminary stage, this Court was persuaded to take into account the factual presumption in law that official acts have been regularly performed.
17. In paragraph No. 13 of Annexure-D order, by which the Bail Appl..No.35 OF 2020 21 application filed by the applicants were earlier dismissed, this Court recorded the submissions of the Central Government counsel in the following lines:
"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."
18. When this application came up for admission, this Court passed an order on 21.1.2020 as follows:
"This Court while dismissing the earlier application had accepted the contention of the learned standing counsel that the investigation is still in the early stages and that more time is required to collect the entire materials against the accused. On a perusal of the Case Diary which is made available, it does not appear that the aspects, which were highlighted by this Court, has been taken note of by the investigating officer. The learned Standing Counsel appearing for the respondent shall file a statement detailing the investigation conducted till date. The statement shall contain the sequence of events and the materials collected by the prosecution to link the petitioner with the trafficking of the drug. The standing counsel shall also produce the statements of the CISF officers, who had intercepted the accused and also the materials collected in respect of the transactions which took place prior to the NCB Bail Appl..No.35 OF 2020 22 officers reaching the Cochin International Airport in the midnight of 07.10.2019."
19. In terms of the directions issued, a statement has also been filed. All that is mentioned in the statement as regards the investigation conducted pursuant to the dismissal of the application is the following:
"8. The following steps have been taken by me by way of investigation. Letters were issued to the Banks mentioned in the respective voluntary statements of the accused, seeking KYC documents and Statements of Accounts. Letter was issued to the Nodal Officer, Reliance JIO Infocom Ltd. and they have issued the call details as well as the Certificate. Copy of the same is included in the file. The CDR from Airtel relating to Mobile No.900343325 owned by Muhammed Ameen and Mobile No.9940168742 used by A3 were also collected from Airtel along with certificate. The details are to be verified. The copies of the certificates are also included in the file. The Statements of Accounts from the Punjab National Bank are also produced. Letter from Royal Wings Hotel, Nedumbassery, showing that Muhammed Ameen stayed in Room No.303 on 6.10.2019 at 7.15 am and checked out at 9.25 pm on the very same day is also collected and included in the file. From Air India Express Ltd. details of the booking of Air tickets made by the accused 2 and 3 were also collected. Statements of several persons connected with the Drugs Trafficking have been recorded. Flight details of A1 from Air Asia were also collected."
20. In other words, even the statements of the CISF personnel, Bail Appl..No.35 OF 2020 23 who had carried out the detection of the narcotic drug has not been recorded by the NCB. Though it was submitted that the CCTV footage of the interception and the seizure was available with the CISF, for obvious reasons best known to the investigating officer, the same has not been collected. There is considerable merit in the submission of the learned counsel that material records have been suppressed from the gaze of this Court. If in fact, the contraband was seized from the 1 st accused and he had disclosed the involvement of the applicants who had already boarded the Aircraft, it can very well be argued that the compliance of section 50 of the Act insofar as the applicants herein are concerned are mandatory particularly, when the presence of the officer of the Customs and Central Excise are available in the Airport. Furthermore, when even according to the NCB, the detection was by CISF personnel headed by the Asst. Commandant Sri.Kripan, it is quite inappropriate to conduct the body search by obtaining his presence as a Gazetted officer. There are numerous suspicious circumstances surrounding the prosecution case and it would not be proper to state the same, as it may prejudice either of the parties..
21. In paragraph 57, sub-para 4 of the judgment of the Hon'ble Supreme Court in Baldev Singh (supra), it was observed thus: Bail Appl..No.35 OF 2020 24
"That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain aboveboard. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a 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 the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by S.50 at the trial would render the trial unfair."
22. There cannot be any doubt 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. 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 Bail Appl..No.35 OF 2020 25 from the person of the accused during such search.
23. After scanning the entire materials, it cannot but be stated that the investigation has been conducted in a very perfunctory manner. When this Court had directed the Investigating officer to produce materials collected in respect of transactions which took place prior to them arriving at the spot which would include the CCTV footages of the interception of the accused, all that is produced is the 161 statement of one Hari Om, Inspector / Executive of the CISF unit. And shockingly enough, even his statement is seen recorded only on 17.1.2020 much after the filing of this bail application on 6.1.2020 and after specific directions were issued to produce the relevant records.
24. As stated earlier, being accused of an offense of possessing commercial quantity of narcotics has serious consequences. The investigating agency has been given a long rope to conduct a water tight investigation and to ensure that the source of the contraband is found and the accused is given due punishment for the grave offense that he has committed. 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 Bail Appl..No.35 OF 2020 26 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 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.
25. I am also not impressed with the contention of the learned counsel appearing for the NCB that these aspects are not to be considered at this stage and that the applicants are to be relegated to the trial court. The investigation that has been conducted is clearly lackluster and leaves a lot to be desired. The contention of the applicants that no contraband has been seized from their possession and it was placed on them cannot be brushed aside due to the failure of the investigating agency to collect the CCTV footage showing their interception.
26. The applicants have been in custody from 9.10.2019 and when they are able to show that there are materials to suspect the very Bail Appl..No.35 OF 2020 27 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.
27. 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 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 Bail Appl..No.35 OF 2020 28 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)]
28. In the instant case, when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached and when the materials called for by the court which would shed a lot of light on the prosecution version is suppressed, 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 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 Bail Appl..No.35 OF 2020 29 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.
29. 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.
30. Since I am, prima facie, satisfied that there are serious doubts concerning the seizure of narcotics from the possession of the applicants 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. Furthermore, the prosecution has no case that the petitioners are persons with criminal Bail Appl..No.35 OF 2020 30 antecedents and therefore there cannot be any apprehension that they would commit any offense 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 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 applicants 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 Appl..No.35 OF 2020 31 bail.
4) They shall not leave the state of Kerala without the permission of the Court having jurisdiction.
5). 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. 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 Ps/26/1/2020