Kerala High Court
Asaraf Ali Samsudeen vs The Narcotic Control Bureau on 6 March, 2020
Author: V Shircy
Bench: V Shircy
B.A.1051/2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941
Bail Appl..No.1051 OF 2020
AGAINST THE ORDER IN CRMC 2320/2019 OF DISTRICT COURT & SESSIONS
COURT, ERNAKULAM
PETITIONER:
ASARAF ALI SAMSUDEEN
AGED 34 YEARS
S/O. ABDUL RAZAK SAMSUDEEN,R/O. NO.230,
ANGAPPAM STREET, 3RD FLOOR, MANNADY,
CHENNAI-600 001
BY ADVS.
SRI.D.G.VIPIN
SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY
RESPONDENT:
THE NARCOTIC CONTROL BUREAU,
ALUVA, REPRESENTED BY ITS INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU,SUB ZONE, COCHIN, THROUGH
ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM,KOCHI-682 031
R1 BY ADV. SRI.MVS.NAMBOOTHIRY
OTHER PRESENT:
SC MVS NAMBOOTHIRI
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
06.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.1051/2020
2
ORDER
Dated this the 6th day of March 2020 This application is for regular bail filed by the 1st accused in O.R. No. 1051 of 2019 of Narcotic Control Bureau, Aluva registered for the offences punishable under Sections 8(c) read with Sections 22(c), 23(c), 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act ('NDPS Act' for short).
2. The crux of the prosecution case is as follows:
On 06.10.2019 at about 22.40 hours, an intimation was sent from the CISF Control Room in Cochin International Airport to the Narcotics Control Bureau ('NCB' for short) that a passenger who was about to board to Air Asia Airways to Kolalambur was found in possession of some suspicious items akin to methamphetamine, a psychotropic substance coming under the NDPS Act concealed in his undergarment and on receipt of the intimation, the NCB officials, reached the Airport and search was conducted and the contraband was seized from the petitioner. Two other B.A.1051/2020 3 passengers,i.e the 2nd and the 3rd accused, who boarded in the aircraft to Doha were made to deboard from the flight and from them also narcotic item were seized.
Since, contraband was seized from the petitioner, he was apprehended along with the other two passengers by NCB and the case has been registered.
3. This petitioner has been in custody since then and hence this application for his release on bail.
4. The learned counsel for the petitioner contended that this petitioner has been illegally made as an accused in the case, in fact he is totally innocent of the allegations levelled against him. It is argued by the learned counsel for the petitioner that as per the mahazar prepared by the NCB officers, they reached the Security Hold Area of the Airport after seizure was effected. What had actually transpired in the Airport prior to the arrival of the NCB officers is not known. It appears that the NCB officials had acted in accordance with the directions of the CISF personnel and the formalities and the procedures contemplated under the NDPS Act for registering a crime have not been complied with. The CISF personnel are not empowered officers to conduct B.A.1051/2020 4 search and hence, it is clear that the safeguards provided under Section 50 of the NDPS Act have not been complied with. Therefore, this petitioner is entitled for his release on bail is the argument of the learned counsel for the petitioner.
5. Per contra, the learned Public Prosecutor strenuously opposed the application contending that all the safeguards provided under the Act were complied with by the NCB officials and they reached the office on receiving information from CISF officials and when they reached the Airport, the petitioner and the other accused were handed over with the contraband seized in routine security frisking. The contraband was in two packets each stitched inside the underwear of the petitioner as well the other accused. So, after complying with the formalities, section 50 notice was issued and the items were seized from them. It is further contended that the formalities required for arrest and seizure were complied with and the petitioner was found in possession of narcotic drug while he tried to transport the same to Kolalambur. So, prima facie there are reasonable grounds to conclude that he is guilty of the offence and if he is B.A.1051/2020 5 released, there is every possibility to repeat similar offence.
6. Heard Adv. Vipin D.G, the learned counsel for the petitioner and Sri. M.V.S. Namboodiri, the learned Standing Counsel.
7. The records prima facie available would show that the contraband seized from the petitioner is of commercial quantity. The question to be looked into in this petition is whether the petitioner is entitled to be released on bail at this stage when the investigation is proceeding in full swing. No doubt, bail can be granted only on fulfilment of two conditions i.e. where there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. Therefore, if the twin conditions are not satisfied he is not entitled to be released on bail, just considering the period of detention undergone by him in custody.
8. The materials so far available would reveal that the detection of the narcotic drugs from this petitioner was when he was about to board the flight to Kolalambur, in security frisking by the CISF B.A.1051/2020 6 officials entrusted with the security of the airport.
9. The occurrence report would reveal that the intelligence officer, NCB reached the security hold area of the air port on intimation from CISF officials and suspects were found with the contraband detected by the CISF Officials in security frisking. The contraband was found kept in transparent polythene sachets stitched to the inside of the underwear of the three suspects. Security frisking is the usual procedure to dispel suspicion of danger as well to detect concealed weapons or contraband. The NCB officials who reached the security zone of the air port tested the same separately with field testing kit and it gave positive result for the presence of methamphetamine. This petitioner was found in possession of 221 gms by weight. The same was packed and sealed in the presence of the petitioner. Thereafter notice under Section 50 of NDPS Act was issued and body search was conducted in the presence of Sri.Kirpan C.B., the Assistant Commandant CISF. Mahazar was also prepared. It is submitted by the learned counsel for the petitioner that the mandatory formalities regarding arrest, search and seizure of contraband have not been complied with B.A.1051/2020 7 and recording of voluntary statement of the petitioner under Section 67 of the NDPS Act is also not valid and hence, the petitioner is entitled to get the benefit of the same and is entitled to be enlarged on bail. At the outset, it is to be noted that whether there is strict compliance with the provisions of the NDPS Act with respect to the arrest, search and seizure have to be evaluated meticulously only at the time of the trial of the case. Each and every material have to be scrupulously evaluated on the basis of the evidence that will be adduced in the case by the prosecution.
10. Here, it is to be noted that the CISF officers are not authorized officers to detect narcotic drugs and to seize the same. But they are bound to secure the security of the Airport and they are duty bound to conduct the security frisking of all the passengers who reach the Airport to board flight. Here, during security frisking, the petitioner was detained as some suspicious items akin to Methamphetamine, a psychotropic substance was found concealed in the undergarment of the petitioner. As it was found concealed in the undergarment, he was detained in the Airport and intimated to the NCB and it was at 22.10 B.A.1051/2020 8 hours on 6.10.2019. The mahazar would narrate that the contraband article was concealed in a polythene cover and it was attached to both sides of the undergarment of the petitioner and the CISF officials detained the petitioner after conducting the search. The items were seized by the NCB officials on preparing a mahazar at about 00.10 hours on 7.10.2019. The same was seized after verifying the same by the NCB officials and records would prima facie reveal that the mahazar was prepared at the spot in the presence of two witnesses, this petitioner and the other two suspects. A suspect to be searched before a gazetted officer, if he requires so, is no doubt an extremely valuable right which the legislature has given to him, and that is to ensure authenticity and creditworthiness to the search and seizure. Here the search was in the presence of the Assistant commandant of CISF. What has transpired after the detection of the contraband substance from the petitioner by CISF officials, up to the time of seizure by the NCB officials can be verified and ascertained after evaluating the CC TV footage and the other evidence at the time of the trial of the case. The prosecution must at the trial B.A.1051/2020 9 establish and satisfy the court about due compliance with the requirements provided in NDPS Act and that the mandatory provisions were observed scrupulously. In this case as the detection was in the air port during security frisking definitely all the details will be available as it happened in a protected area. While considering an application for bail, all the details regarding the detection and seizure with all minute details will not be available. Whether all the mandatory formalities were complied with, prima facie need to be verified while considering an application for bail. Whether all the safeguards provided under the Statue regarding the arrest, search and seizure are observed scrupulously or investigation has been conducted in a perfunctory manner, are matters to be assessed and evaluated by the court at the time of trial. The case diary made available by the prosecution would show the sequence of events and a reasonable, fair and just procedure prima facie appears to have been followed by the NCB officials as well by CISF officials, who intimated the detection without any delay to NCB officials. The materials available as such are not sufficient to accept the argument advanced by B.A.1051/2020 10 the learned counsel for the petitioner that a false and frivolous accusation was made against an innocent passenger who came to the Airport to fly to a foreign country. It is also pertinent to note that the non obstante clause in Section 37 of the NDPS Act impose limits in granting bail when the contraband involved is of commercial quantity. Only if there are reasonable grounds for believing that an accused brought before court has not committed an offence and he is not likely to commit any offence if released on bail, is entitled to be released from judicial custody.
Section 37 of the NDPS Act 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 27-A 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 reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any B.A.1051/2020 11 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 fore, on granting of bail."
11. In Union of India v. Ram Samujh ((1999) 9 SCC 429) the Apex Court held as follows:
"8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely.
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-
accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
12. Again, the Apex Court in State of Kerala Etc. v. Rajesh Etc. (2020 (1) KHC 557 (SC)) observed as follows:
B.A.1051/202012
"20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is only subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the Accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the Accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the code of Criminal Procedure, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
13. Learned counsel for the petitioner has submitted that bail has already been granted to B.A.1051/2020 13 accused Nos. 2 and 3 by this court by an order dated 27.01.2020, and he relies on the observations made by this Court in that order that the statements of CISF personnel who had carried out the detection of the narcotic drugs have not been recorded by the NCB and the CC TV footage of the interception and seizure that was available with CISF have not been produced and that the search conducted in the presence of the Assistant Commandant of CISF, as a Gazetted Officer is a suspicious circumstance surrounding the prosecution case etc, to argue that this petitioner is also entitled to be enlarged on bail on those grounds. But granting of bail to a co-accused cannot be a ground to release the other accused on bail. Moreover there is slight difference in both the cases regarding detection, seizure etc. On going through the materials available before me, I do not find any reasonable grounds as mandated by the provisions in the NDPS Act and observed by the Apex Court in above referred decisions to conclude that the petitioner is entitled to be enlarged on bail. So, I find it difficult to believe from the B.A.1051/2020 14 available materials before me that there are reasonable grounds to think that this petitioner is not guilty. So also, there are sufficient grounds to believe that if the petitioner is released on bail, there is every possibility to commit similar offences while on bail. At this stage I find no genuine reason to think that this petitioner was falsely implicated in this case.
14. It is doubtless that such restrictions have been imposed by this Act with the intention to curb these type of illegal activities endangering human life especially the youth. The Act was implemented with stringent provisions to control and regulate operation of narcotic drugs and psychotropic substances as well to put an end to illicit traffic of narcotic drugs for the welfare of the society. Further more, trafficking of narcotic drugs and psychotropic substances is a menace to the society as a large number of youngsters are dragged to the habit of using it, thereby addicted to it and spoil their valuable life. So stringent conditions are imposed in seizure and arrest of the accused as well release B.A.1051/2020 15 of the accused on bail. All safeguards provided in the statue are to be followed scrupulously When there are no reasonable grounds to infer that he is innocent and no offence has been committed in contravention of the provisions of this Act, it cannot be taken lightly, ignoring the mandatory conditions provided in the Act, considering the period of detention undergone by him in judicial custody. If that be so, that will result as a failure to achieve the objectives of NDPS Act. It is doubtless that leniency in the matter of bail will be against the spirit of the law.
So, I am constrained to conclude that though bail has been granted to accused Nos. 2 and 3, this petitioner is not entitled to be released on bail.
Dismissed.
Sd/-
SHIRCY V JUDGE sb