Suhail Ali vs State Of Kerala

K.Haripal, J

This is an application for regular bail filed by the sole accused in Crime No. 15/2021 of Palakkad Excise Range, which was registered on

20.03.2021, after seizing 115 grams of methamphetamine, a synthetic psychotropic drug coming in the category of MDMA from the bag carried by

the petitioner. He was arrested along with the contraband on 20.03.2021 and since then is continuing in judicial custody.

The learned counsel for the petitioner submits that he is totally innocent in the case, he has been falsely implicated, that Section 50 of the NDPS

Act has not been complied at all. It is true that the contraband was allegedly seized from the bag carried by him. Thereafter, his body was also

searched, but that was done without complying the provisions of the NDPS Act, so that, the search and seizure are bad. According to the learned

counsel, perusal of the mahazar alone is sufficient to think that it is an unbelievable case. Going by the mahazar, when the Excise party had searched

the bus travelled by the petitioner, he alone had refused the search of the bag, he had allegedly held his bag close to his chest and did not permit the

Excise party to open the same. These are unbelievable versions. According to him, the petitioner has no criminal antecedents, that he is only 25 years

old and that he may be released on bail. To support the contention, the learned counsel also relied on the decisions in State of Rajasthan v. Parmanand

and Another [2014 CrLJ 1756] and also Muhammed Ameen and Another v. The Narcotic Control Bureau, Cochin [2020 (1) KHC 645].

The learned Senior Public Prosecutor has strongly opposed the application. According to him, it was a chance recovery, so that the question of

complying Section 42 of the NDPS Act did not arise. The mahazar shows that Section 50 of the NDPS Act was complied with. Whether the right of

the petitioner to be searched was communicated etc., can be decided only at the time of trial. Anyhow, there is substantial compliance of Section 50 of

the NDPS Act. According to the learned Senior Public Prosecutor, full compliance of Section 50 of the NDPS is not necessary, for the reason that it

was a chance recovery.

I have also gone through the case diary made available for perusal. The mahazar prepared by the Excise Inspector dated 20.03.2021 indicates that,

that day two squads of the Excise officials had searched vehicles near the Palakkad check post. At that time, the petitioner was proceeding from

Bangalore to Cochin in the bus of Orange Tours & Travells, bearing Registration No. AP-16-PJ-5925; all the passengers were searched; when

searched, the petitioner had given prevaricative answers with regard to the contents of the bag carried by him. Thus when the bag was opened and

searched, it contained 115 grams of methamphetamine which is a narcotic drug. Going by the mahazar, the petitioner had confessed that the

contraband was procured by him from Bangalore for Rs.2,00,000/-, which was intended for sale in Ernakulam and thus the items were seized.

Thereafter, since the body search of the petitioner was necessitated, the Circle Inspector from the Excise Enforcement and Anti-Narcotic Special

Squad, one Satheesh P.K., was contacted over phone; on his arrival, the body of the petitioner was also searched in his presence, but nothing was

seized from his body. Anyhow, after seizing 115 grams of methamphetamine from his bag, the petitioner was arrested, the crime was registered and

since then he is continuing in judicial custody.

I have no doubt that after seizing so much quantity of offensive articles from the bag, if the body was searched without complying Section 50 of the

NDPS Act, that is violation of the provision and that is a ground vitiating the very search and seizure. The learned counsel had relied on the decision in

State of Rajasthan (supra), on the premise that the body was searched without complying Section 50 of the Act. But, a perusal of the mahazar

indicates that his person was searched after the arrival of the said Circle Inspector, a gazetted officer and in his presence only. That means, there is

force in the argument of the learned Public Prosecutor that Section 50 of the NDPS Act has been duly complied with.

The question whether it is a false case or that the allegation that the petitioner had held the bag to his chest and refused to be searched by the

Excise officer etc., can be decided only after taking evidence. A court dealing with an application for bail cannot conduct a mini trial. It is the settled

proposition. After perusing the case diary, there are reasons to think that procedural formalities have been substantially complied with. For searching,

the bag carried by the petitioner, Section 50 of the NDPS Act need not be complied with. But the body was searched after the arrival of said Circle

Inspector.

The version of the learned counsel that it is unbelievable that the petitioner, seeing the Excise Officials had held the bag containing the offensive

article close to his chest etc., cannot be considered at this stage. The allegation that it is a false case also does not appear correct, at least at this

stage. There is also no reasons to think that the Excise Officials had planted such a case against the petitioner. Prima facie, materials suggest that so

much quantity of methamphetamine was seized from his possession. It is a commercial quantity. Therefore, the embargo under Section 37 of the

NDPS Act is attracted.

The learned Senior Public Prosecutor has strongly opposed the application. At least for the present, there are no reasons to think that the petitioner

is not guilty. Therefore, the statutory injunction under Section 37 of the NDPS Act has come into play and the petitioner is not entitled to get any relief.

The bail application is dismissed.