Satheesan vs State Of Kerala

A. Badharudeen, J.

This is a petition filed under Section 439 of the Code of Criminal Procedure and the petitioner is the sole accused in crime No.911/2022 of Pudukkad Police Station, Thrissur, where he alleged to have committed offences punishable under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act', for short), and the petitioner seeks regular bail.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

I have perused the relevant documents form part of the Case Diary produced by the learned Public Prosecutor and the report of the Investigating Officer.

The prosecution allegation is that at about 3:31 hrs. on 11.10.2022, based on a secret information received to the effect that the accused was transporting contraband in a car bearing registration No.KL-08/N-4843, after recording the said information in the general diary in writing, the Sub Inspector and party stood at the relevant place and intercepted the car. When the driver of the car was questioned, he had given inconsistent answers and, thereafter, he was personally searched, after complying Section 50 of the NDPS Act and, thereby, 21.05 Kg of Ganja was seized. Accordingly, crime was registered alleging commission of the above offence and now, the 1st accused has been in custody from 11.10.2022 onwards.

While pressing for grant of regular bail to the petitioner, who was nabbed along with commercial quantity of contraband, with a view to dilute or to satisfy the conditions provided under Section 37 of the NDPS Act, the learned counsel for the petitioner raised specific contention that in this case, the search was in between sunset and sunrise and, therefore, there should be materials at the instance of the prosecution to see compliance of 2nd proviso to Section 42 of the NDPS Act to show that the detecting officer recorded grounds for his belief under the proviso there to, for search of the conveyance between sunset and sunrise.

It is submitted by the learned Public Prosecutor further that as per the report relied on by the prosecution, compliance of 2nd proviso to Section 42(1) could not be gathered.

According to the learned counsel for the petitioner, non-compliance of 2nd proviso in a case involving commercial quantity of contraband, where the punishment is hard, the same is fatal and, therefore, the petitioner is entitled to get bail because of non-compliance of the 2nd proviso to Section 42(1) of the NDPS Act.

Whereas, the learned Public Prosecutor zealously argued that when the search is from a public place or from a conveyance, Section 42 has no application and the relevant provision dealing with the recovery is under Section 43 of the NDPS Act. The learned Public Prosecutor placed decision in support of his contentions. The first decision placed is Karnail Singh v. State of Haryana [2009 KHC 864; 2009(3) KLT SN 52; 2009 (10) SCALE 255; 2009 (8) SCC 539; 2009 CriLJ 4299; 2010(88) AIC 28; 2009 (3) SCC (Cri) 887; 2009 (108) Cut LT 681], rendered by the constitution bench of the Apex Court. In paragraph 18 of Karnail Singh’s case (supra), the constitution bench while concluding the finding, observed as under:

In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of S.42(1) and 42(2) nor did Sajan Abraham hold that the requirements of S.42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in sub-s(1) of S.42) from any person had to record it writing in the concerned Registrar and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of S.42(1).

(b)But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of S.42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words the compliance with the requirements of S.42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non compliance of requirements of sub-s.(1) and (2) of S.42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of S.42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non sending a copy of such information to the official superior forthwith, may not be treated as violation of S.42. But if the information was received when the police officer was in the police Station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of S.42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of S.42 of the Act. Whether there is adequate or substantial compliance with S.42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to S.42 by Act 9 of 2001.

similarly, the learned Public Prosecutor also relied on decision of the Apex Court reported in Girish Raghunath Mehta v. Inspector of Customs and Another [2016 KHC 6602]. Paragraph 10 of the above decision has been placed to buttress the contention raised by the learned Public Prosecutor. Paragraphs 10 and 11 of the judgment are extracted hereunder:

The contention raised on behalf of the appellant on the basis of judgments of this Court Abdul Rashid Ibrahim Mansuri, Jag Raj Singh and Sukhdev Singh (supra) cannot be accepted. As already noticed, S.42 of the Act has no application to the fact situation of the present case. The said section applies when the contraband recovered from a building, conveyance or enclosed place. Where recovery is from a public place, S.43 applies. This Court reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra) and Sajan Abraham v.State of Kerala, 2001 (6) SCC 692 in larger bench judgment in Sukdev Singh (supra). It was held that in view of technological advancements, it may not be possible to record information as per the requirement of S.42. Strict compliance by the investigating agency should not be required in an emergency situation to as to avoid misuse by wrongdoers/offenders/drug peddlers 2009 (8) SCC 539-Para 34) Whether there is adequate substantial compliance is a question of fact in each case. Apart from the finding that present case is governed by S 43 there is no ground to interfere with the concurrent finding of the Courts below that there is adequate compliance of S.43 of the Act.

Similarly, the contention on the basis of the judgments in Tofan Singh, Raju Premji and Noor Aga (supra) also cannot be accepted. There can be no doubt that the Court has to satisfy itself that the statement under S.67 was made voluntarily and at a time when the person making such statement had not been made an accused. Whether the statement is voluntary and free from encumbrance has to be judged from the facts and circumstances of each case. In Tofan Singh (supra), the question whether the investigating officer investigating the matter under the Act is a police officer and whether the statement recorded by the investigating officer under S.67 of the Act can be treated as a confessional statement has been referred to the larger Bench. It is not necessary to go into this aspect in the present case as there is adequate evidence to prove the sale of the contraband by the appellant for which co-accused has been convicted and sentenced. The prosecution version is based not only on the statement under S.67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant.

Similarly, the decision of the Apex Court reported in Directorate of Revenue and Another v. Mohammed Nisar Holia [2007 (4) KHC 981] also has been placed in support of the contentions. Apart from that, the learned Public Prosecutor given heavy reliance on another decision of the Apex Court reported in State of Haryana v. Jarnail Singh [2004 KHC 710] and it is specifically argued that Sections 42 and 43 of the NDPS Act deal with the different situations. Section 42 contemplates, the entry and search of any building, conveyance or enclosed place, while Section 43 contemplates power of seizure and arrest in public place. It is argued that if seizure is made under Section 43 between sunset and sunrise, the requirement under the 2nd proviso to Section 42(1) need to be complied with, since there is no such proviso under Section 43 of the NDPS Act. Therefore, when search is pertaining to a public conveyance, in a public place, the officer making the search did not record the satisfaction, as contemplated by the 2nd proviso to Section 42(1) of the NDPS Act, for searching the vehicle between sunset and sunrise. The relevant observation in paragraph 9 is extracted hereunder:

S.42 and 43, therefore, contemplate two different situations. S.42 contemplates entry into and search made in any building, conveyance or enclosed place, while S.43 contemplates a seizure made in any public place or in transit. If seizure is made under S.42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in S.43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to S.42 of the NDPS Act for searching the vehicle between sunset and sunrise.

Apart from that, decision of the Punjab and Haryana High Court in CRM-M-27760/2021 dated 25.07.2022 also has been placed while distinguishing Sections 42 and 43. The decision of this Court reported in Manumayaseelan v. State of Kerala [2022 (6) KLT 185] also has been placed in this regard.

Whereas, refuting this contention, the learned counsel for the petitioner placed decision of the Apex Court reported in Boota Singh and Others v. State of Haryana [2021 KHC 6240], wherein exactly similar question has been considered by the Apex Court. As per the above decision, the question considered by the Apex Court was the scope of Section 42 of the NDPS Act. In paragraph No.14 of the above judgment, it has been observed as under:

The decision of this Court in Karnail Singh, (2009) 8 SCC 539 as followed in Jagraj Singh alias Hansa, (2016) 11 SCC 687, is absolutely clear. Total non-compliance of S.42 is impermissible. The rigor of S.42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh, (2009) 8 SCC 539 but in no case, total non-compliance of S.42 can be accepted.

While concluding the question as to the scope of Section 42 in paragraph 12, the Apex Court held as under:

The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to S.43 shows that a private vehicle would not come within the expression “public place” as explained in S.43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa, (2016) 11 SCC 687, the relevant provision would not be S.43 of the NDPS Act but the case would come under S.42 of the NDPS Act.

Thus, going by the ratio in Boota Singh’s case (supra), it has to be held that when the vehicle was not a public conveyance but a vehicle belonging to an individual as per the ratio in Jagraj Singh alias Hansa [(2016) 11 SCC 687], the relevant provision is not Section 43 of the NDPS Act, but the case would come under Section 42 of the NDPS Act.

In  this  matter,  as  per  the  report submitted by the investigating officer with title ‘report under Section 42(2)’, the information was recorded in writing and informed to the higher officials. Simultaneously, recording the same in the General Diary also was done. But either in the report or in the General Diary, there is no narration as to necessity of search during sunset and sunrise as contemplated by the 2nd proviso to Section 42(1) of the NDPS Act. If so, the case at hand is one exactly same as dealt by the Apex Court in Boota Singh’s case (supra).

Even though the learned Public Prosecutor attempted to treat the vehicle, from which the contraband was seized would come within the meaning, ‘public vehicle’ dealt with under Section  43  of  the  NDPS  Act,  the  available materials do not justify such contention. At this juncture, the learned Public Prosecutor given emphasis to the decision of the Apex Court, reported in [2021(10) SCC 100], Union of India through NCB, Lucknow v. Md. Navaz Khan, to contend that at the time of grant of bail, the question as regards compliance or non-compliance of Section 42 of the Act is not strictly required to be gone into, as the same is a matter, which would best to be left adjudicated at the time of trial. According to the learned Public Prosecutor, since non-compliance regarding Section 42 in so far as 2nd proviso, the same shall be relegated to the trial court to decide the same on merits during evidence and merely because of non-compliance of 2nd proviso to Section 42(1) of the NDPS Act, the rigour under Section 37 of the NDPS Act, cannot either be diluted or to be given a go-by to grant bail since compliance of Section 37 is mandatory in nature as held by the Apex Court in a catena of decisions.

In Md. Nawas Khan’s case (supra), the Apex Court held as under:

“29.  In the complaint that was filed on 16 October 2019 it is alleged that at about 1.00 hours on 26 March 2019, information was received that between 1500-1700 hours on the same day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. Therefore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial.”

Therefore, this Court need not go into the niceties of the contention raised by the learned counsel for the petitioner at this stage as a ground to grant bail and it cannot be simply said that such contention is a ground to dilute the rigour under Section 37 of the NDPS Act.

Coming back, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under:

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 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.

On a perusal of the Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of an accused involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail.

The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, Union of India v. Shiv Shankar Kesari and held that the expression ‘reasonable grounds’ 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 was further held that 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.

While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotics Central Bureau v. R.Paulsamy [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810:  2004 (166)  ELT 302],  Union  of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], Union of India v. Rattan Malik [2009  KHC  4151:  2009(2)  SCC  624:  2009(2)  KLT  SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], Union of India v. Niyazuddin [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], State of Kerala v. Rajesh [2020(1)  KHC  557:  AIR  2020  SC  721:  2020(1)  KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is Union of India v. Jitentra Giri [2023 Cri.LJ 799].

On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients.

On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, application for regular bail at the instance of the petitioner must fail.

Hence the petition stands dismissed.