Use Of Technology For 'Secretive' Drug-Related Transactions Relevant Consideration While Deciding Bail Plea U/S 37 NDPS Act: Kerala High Court

The Kerala High Court has criticised the use of modern technology for carrying out 'secretive transactions' for obtaining contraband articles and has held that such actions constitute a relevant consideration while deciding applications for bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act').

Single Bench of Justice Ziyad Rahman A.A. noted that through the use of Apps such as Wickr App and Binance App, the petitioner-accused in this case sought to ensure that the transactions carried out by him remained untraced.

"The eagerness to maintain secrecy is something very crucial at this stage and relevant for considering the 'reasonable grounds' as contemplated under section 37 of the NDPS Act ('Offences to be cognizable and non-bailable'). The dependence of the petitioner upon the Apps that enabled him to have transactions without any trace and silence maintained by him as to the purposes of such transactions is one of the crucial circumstances," the Court observed while refusing bail. 

The Court took the stern view that unless such attempts to make use of advanced technology in committing offences under the NDPS Act are nipped in the bud, the purpose behind the stringent provisions of the Act would be defeated, and the objects behind its enactment would not be achieved. 

Further lamenting the impact of drug abuse on the society, the Bench observed:

"...one of the crucial aspects to be considered is the purpose for which the stringent provisions in the NDPS Act are incorporated. It is to be noted that, even for offences under Section 302 of the IPC, for which capital punishment is prescribed, the conditions for bail as contemplated under Section 37 (of the NDPS Act) are not prescribed. This is presumably because of the serious impact of the offences under the NDPS Act, on society as a whole. In the case of murder, the impact is mostly confined to an individual or his family; whereas the impact of drug abuse and drug trafficking mainly affects the young generation, thereby causing its impact on the growth of the country as such". 

The 29-year-old accused allegedly placed order for 51.32 gms of MDMA and 7.23 gms of Cocaine, through 'Wickr Me' App - a facility to carry out transactions through the dark net anonymously. However, being suspicious of the parcel received (from a foreign country), the Post Office informed the Narcotics Control Bureau (NCB).

The petitioner allegedly admitted to having placed the order for the contraband articles through the dark net on the aforementioned app, and making the payment for the same through the Binance cryptocurrency trading App, using Monero (XMR) currency. He also supplied the screenshots of the transaction made by him through the Binance App. His mobile phone was subsequently seized by the NCB and sent for analysis. At the time of the present bail application, the NCB had completed the investigation and submitted a complaint before the Sessions Court in Ernakulam. 

The counsel for the petitioner argued that there was nothing to indicate the petitioner's role apart from the fact that the parcel was addressed in his name. As regards petitioner's statement under Section 67 of the NDPS Act (Power to call for information), the counsel contended that the same was not admissible in evidence in light of the law laid down in Tofan Singh v. State of TN (2021). It was added that the prosecution could not collect any materials to prove the transactions carried out through Wickr Me and Binance Apps. 

Advocate Navaneeth N. Nath appearing on behalf of the NCB argued that since 51.5 gms of MDMA was recovered from the parcel, the same would amount to commercial quantity, to which, the rigour under Section 37 of the NDPS Act ('Offences to be cognizable and non-bailable') would apply. 

The Court in this case was of the view that apart from the statement of the petitioner, there were several other materials as well for establishing the petitioner's admission. The Court noted that altogether there were five transactions, the total value of which was equivalent to INR 55,000/.

Court also noted that the App is a payment wallet which enables payments without reflecting the same in bank account, due to which the details of the recipients could not be obtained herein. However, it said that the transactions had occurred on two days immediately before the parcel was sent to the petitioner's address. 

As regards the Wickr Me App, the Court took note that the App provides end-to-end encryption of text, picture, audio, video, and messages, and the encrypted messages are temporarily stored in the server of the service providers, and once the recipient downloads the same, the messages would be automatically deleted.

The Court was of the considered opinion that meticulous analysis of the materials is required to be made only at the time of trial, and that at this juncture, it was only concerned with whether the petitioner ought to be granted bail. in view of stipulations in Section 37 of the NDPS Act.

On consideration of the aspect that the petitioner had relied upon Apps that enabled him to have transactions without any trace and the silence maintained by him as to the purposes of the transactions, the Court was of the view that the same were crucial circumstances.

"Indeed, the petitioner has no obligation to divulge the details of the said transactions, as he has every right to remain silent, and the burden is on the prosecution to establish the complicity of the petitioner. However, in my view, when trying to find out the reasonable grounds to satisfy the dual conditions in section 37 of the Act, those aspects have some crucial importance," the Court observed. 

Accordingly, and on taking note of the objective behind the stringent provisions of the NDPS Act, the Court was of the firm view that the case did not warrant any leniency and had to be dealt with strictly. 

The bail application was thus dismissed. 

The petitioner was represented by Advocates Salim V.S., A.M. Fousi, and A.B. Ajin. 

Also Read: Rigour Like S.37 NDPS Act Not Even Prescribed For Grant Of Bail To Murder Accused, Such Is Impact Of Drug Abuse On Society: Kerala High Court

Citation: 2023 LiveLaw (Ker) 447