NDPS Act | Court Need Not Look At Breach Of Mandatory Provisions Of Statute While Deciding Bail Plea: Kerala HC

“… this Court is of the considered opinion that violation of the mandatory provisions of the NDPS Act need not be looked into by the bail court, while considering a bail application of an accused involved in the NDPS Act. At the stage of the bail, the court only has the FIR, seizure mehazar and statement of the witnesses recorded by the police. Therefore, there cannot be any prima facie finding based on these records at the stage of bail. Unless the entire case is known, the contention regarding the legality or validity of the action taken by the Detecting Officers, while conducting the search need not be examined in depth by the bail court.”

The court added that even in a case where the final report is filed, the Court should not consider the violation of statutory provision as any prima facie finding on it will prejudice the interest of the accused or the prosecution.

The court further said that when a lawyer makes contentions in bail applications, which may affect his client's interest in the trial, he should not take such contentions thinking his client behind him. In the present case the court in its order observed that it had repeatedly requested the lawyer not to force the court to decide the points raised by him observing that, it will prejudice the interest of his client; however the lawyer insisted on an order on merits.

"In such a situation, there is no other way except to decide the point raised by the lawyer on merit. But I cannot ignore the face of the client behind him. Therefore, I make it clear that the observation and finding in this order are only for the purpose of deciding this bail application, and the petitioner is free to raise all these contentions before the trial court at the appropriate stage," it said. 

The petitioner was involved in a case where allegedly 83.83 kgs of ganja were recovered from a pick-up van. As per the case, the vehicle was stopped by a police party conducting vehicle checking. However, on seeing the police, 2 persons travelling in the pick-up van ran away. At this point, police questioned the drivers and other passengers in the vehicle. A Sub-Inspector inspected the vehicle and saw travel bags covered with plastic sheets.

On removing plastic sheets, a severe smell of ganja came from the bags. As per the police officer, the bag was opened in front of witnesses and the ganja was found inside them. The driver and 2 passengers were arrested. Their body was searched in the presence of a Gazetted Officer. It was alleged that the accused committed offence under Section 20(b)(ii)(C) (possessing commercial quantity of cannabis) of the NDPS Act. The instant bail application is submitted by the 5^th accused who was arrested later.

The petitioner argued that the seizure of contraband was illegal as the mandatory provisions under Sections 42 and Section 50 of the NDPS Act was not followed. Section 42 deals with the procedure to be followed to conduct search, seizure and arrest without warrant or authorization. Section 50 elaborates the condition under which a person can be searched.

The petitioner alleged that as per the FIR, the detecting officer noticed the smell of ganja. Therefore, he argued that before opening the bag, he should have followed the procedure under Section 42 of the Act. The petitioner submitted that the detecting officer should have taken down that information in writing, sent a copy thereof to his immediate superior officer. He also argued that the Detecting Officer could not have conducted the search between sunset and sunrise without recording his grounds for belief that a search warrant or authorization cannot be obtained without affording an opportunity for concealment of evidence or escape of an offender.

The Public Prosecutor opposed these arguments by saying that this was a chance recovery and therefore compliance with Section 50 and 42 was not required.

The Court initially hesitated into looking whether there was compliance of mandatory provisions of the Act. The Court said that the contention can be taken up before the trial court at appropriate stage. However, on the petitioner's insistence, the court decided to consider the same.

"This Court conveyed this proposition to the counsel for the petitioner. But the counsel for the petitioner insists for a consideration of the above contention at the bail stage itself. When a counsel insists on considering a point in a bail application, this Court is bound to consider the same in the light of the principle laid down by this Court in Anzar Azeez v. State of Kerala," it said. 

The Court thereafter noted that procedure under Section 50 is to be only followed while searching the body of a person; if  recovery was not from the person and was from a bag carried by him, the procedure prescribed under Section 50 of the NDPS Act were not required to be complied with.

In stating so the Court relied on the Supreme Court decision in State of Kerala v Prabhu (2024). It noted that in the present case the Ganja was admittedly seized from the bag kept in the vehicle. The Court noted that before searching the accused persons the procedure under Section 50 was complied with. The Court therefore concluded that there was no violation of Section 50 of the NDPS Act.

Regarding, non-compliance with Section 42, the High Court relied on Union of India v Md. Nawaz Khan (2021) and held that Section 42 of the NDPS Act need not be considered by the high court in a bail application.

Since there was an insistence from the counsel for deciding the same, the Court perused the First Information Statement and noted that it was a chance recovery.

"In chance recovery, I am of the prima facie opinion that, Section 42 violation need not be considered strictly. Moreover, whether Section 42 violation is there or not, is a matter of evidence. A bail court need not consider the same in detail. Therefore, that contention is also unsustainable," the court added. 

With these observations, the bail was dismissed. 

Counsel for the Petitioners: Adv. Sumeesh Kumar R

Counsel for the Respondents: Adv. Naushad K. A. (Sr. PP)

Case No: BA 3089 of 2025

Case Title: Jomon v State of Kerala and Another

Citation: 2025 LiveLaw (Ker) 212