NDPS Act- If Search & Seizure Are Bad Then This Aspect Can Be Considered At Investigation Stage To Grant Bail: Kerala High Court

The Kerala High Court recently observed that if the very search and seizure are bad and vitiated that it would cut the very root of the prosecution case and therefore, such an aspect can be considered at the stage of investigation for granting bail.

The Bench of Justice K. Haripal was hearing two bail applications in connection with an FIR registered to allege offence punishable under Sections 22(c) and 29 of the Narcotic Drugs And Psychotropic Substances Act.

The facts in brief

As per the prosecution's case, on April 17, 2021, the police officials were moving in their official vehicle attending routine patrolling work when they came across the petitioners who were standing near the motorcycle.

They stopped the vehicle and asked their names and then the Sub Inspector searched their bodies for the purpose of ascertaining whether they carried any weapon of offence.

When nothing was found out; they disclosed their names, their names, and addresses, which were noted, and then, in order to confirm whether the identity stated by them were correct, the Sub Inspector wanted them to open their purses and at that time, LSD stamp was found from the purse of the first accused and smoking papers were found from the purse of the second accused.

Thus, the accused were arrested which ultimately led to the registration of the crime under Sections 22(c) and 29 of the Act, after seizing 0.110 gram of LSD from the accused persons two in number.

It may be noted that till July 6, 2021, the police proceeded as though the quantity of contraband was 0.110 mg, however, later on, it was discovered that it was a mistake on the part of the Sub Inspector and other police parties to show the quantity of contraband as 0.110 mg, the actual quantity was 0.110 gram.

Court's observations

The counsels for the petitioners urged that the crime was registered without following the procedural formalities and that even though the body of both the petitioners were searched by the Sub Inspector, no attempt was made to follow the mandatory directives under Section 50 of the Act.

The Court perused the mahazar and noted that the submission made by the counsel was correct that no attempt was made to follow the mandatory directives under Section 50 of the Act.

"It is true that the detection of the crime was not the direct result of the body search conducted by the Sub Inspector. As noticed earlier, he had searched the body of the petitioners immediately on seeing them, for the purpose of ascertaining whether they carried any arms or weapons with them. At that time, slightest doubt was not there to suspect that they had carried any offensive articles like narcotic drugs or other substances. They had readily related their name and addresses and only when the Sub Inspector wanted to ascertain or counter check the addresses that they were asked to open their purses," observed the Court.

Further, noting that there was absolutely no attempt to comply with Section 50 of the Act, the Court remarked thus:

"Before conducting the body search, the right of the petitioners to be searched in the presence of a gazetted officer or a Magistrate should have been conveyed to them, which was not done."

Thus, the bail applicants were granted bail on the condition to execute bond for Rs.1,00,000/- (Rupees One lakh Only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court.

About Section 50 of the NDPS Act

It may be noted that Section 50(1) of the NDPS Act states that when any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

Section 50 NDPS Act suggests that it is a duty of the Investigating Officer to apprise the accused of his legal right that his search for the possession of narcotics, be conducted in the presence of the Magistrate or a Gazetted Officer, however, if the accused waives off this legal right or consents (be it oral or written) then in a such a case the Investigating officer can conduct his search for the same.