Kerala High Court Annual Digest 2023: NDPS Act

Case Title: Firozalavi T.V. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 40

The Kerala High Court considered the question as to whether a vehicle piloting or accompanying another vehicle, which is transporting Narcotic Drug and Psychotropic Substances could be held as vehicle used as conveyance in carrying the contraband so as to confiscate the same under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), and answered the same in the negative.

The Single Judge Bench of Justice A. Badharudeen observed that to hold that the vehicle accompanying or piloting another vehicle carrying the contraband, also as a vehicle carrying the contraband, and to treat the same also as conveyance is beyond the statutory intent of Section 60(3) of NDPS Act.

'Reasonable Grounds' For Grant Of Bail U/S 37 NDPS Act Implies Something More Than Prima Facie Grounds: Kerala High Court Reiterates

Case Title: Suresh Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 56

The Kerala High Court refused to grant bail to a man booked under Sections 22(c), 27 A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of commercial quantity of MDMA. The bail application was filed by the 9th accused in a crime registered on the files of Excise Range Office, Ernakulam for possession of 1.085 Kgs of MDMA that was discovered at Marhaba Apartment, Vazhakala.

Justice A. Badharudeen while dismissing the bail application observed that the rider under Section 37 of the NDPS Act would apply for possession of commercial quantity of contraband and that bail can only be granted if there are reasonable grounds for believing that the accused is not guilty of the offence and that he will not commit any offence if released on bail.

S.52A NDPS Act Not Bar To Grant Interim Custody Of Seized Vehicles U/S 457 CrPC: Kerala High Court

Case Title: Shanil v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 88

The Kerala High Court held that jurisdictional courts, such as the Special Court and Magistrate Court, are vested with the power to grant interim custody of vehicles seized in connection with offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS) under Section 457 CrPC, irrespective of the procedure for disposal stipulated in Section 52A of the Act.

Justice V.G. Arun arrived at the above finding while noting that the Apex Court had, in Sainaba v State of Kerala & Anr. (2022), reversed the finding in Shajahan v. Inspector of Excise (2019), that Magistrates were denuded of the power to grant interim custody under Section 451 CrPC.

"...the appeal (in Sainaba) was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted"

Police Officer Is Gazetted Officer For Search Of A Person U/S 50 NDPS Act Unless He Is Part Of Investigating Team: Kerala High Court

Case Title: Nithin V State of Kerala

Citation: 2023 LiveLaw (Ker) 137

The Kerala High Court recently held that any police officer being a gazetted officer would be competent to conduct a search under Section 50 (conditions under which search of persons shall be conducted) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The only exception to this would be a police officer part of the detecting or investigating team, as such an officer could not be considered an independent officer for the purposes of the search.

The court also clarified that ensuring the presence of the gazetted officer at the place of search, instead of taking the accused to the gazetted officer would not be considered non-compliance of Section 50 of the NDPS Act.

A single bench of Justice A Badharudeen was considering the bail application of a man who was arrested for possession of 0.9 grams of MDMA intended for sale which is punishable under the NDPS Act.

IOs, Public Prosecutors Can't Casually Seek Extension Of Time For Completing Probe In NDPS Cases, Requisite Training Be Imparted: Kerala High Court

Case Title: Dayal v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 139

Observing that investigating officers and public prosecutors in many cases are showing laxity in properly framing and submitting petitions under Section 36A (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Kerala High Court has asked the Director General of Prosecution and Director General of Police to take appropriate action for imparting requisite training and refresher courses to the officers.

"The necessity of clearly setting out the twin requirements for seeking extension of detention of accused beyond 180 days cannot be overlooked or dealt with in a casual manner under any circumstance. This is an aspect that should engage the attention of the Director General of Prosecution and the Director General of Police," Justice V. G. Arun said.

Quantity Of Contraband Can Be Considered For Dilution Of Rigour Of S.37 NDPS Act After Satisfying Other Parameters For Bail: Kerala High Court

Case Title: Jijendran C.M. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 206

The Kerala High Court recently observed that quantity of the contraband seized from an accused can also be regarded as a parameter in addition to other factors, for diluting the rigour under Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) for the purposes of grant of bail.

As per Section 37 of the NDPS Act, the Court can grant bail to the accused only if it 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

Justice A. Badharudeen noted that the other parameters that ought to be satisfied in this regard included firstly, accused not having any criminal antecedents; secondly, the accused being in custody for a long time, at least more than a year; and lastly, the impossibility of trial within a reasonable time, i.e. at least within a period of six months, after completion of his custody for a period of more than one year, as had been laid down by several Apex Court decisions.

Contraband Of Just Above Intermediate Quantity But Not Sizable Is An Additional Factor For Diluting Rigour Of Section 37 NDPS Act: Kerala High Court

Case Title: Fasil V State of Kerala

Citation: 2023 LiveLaw (Ker) 208

The Kerala High Court recently said that the quantity of the contraband seized being just above the intermediary quantity can be one of the grounds to dilute the rigour of Section 37 while granting bail in a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

The court held that apart from the parameters already laid down by the Apex Court including lack of criminal antecedents, time already spent in custody and the time left for commencement of trial, an additional factor to be considered would be the quantity of contraband seized.

A single bench of Justice A. Badharudeen observed that 

“Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”

NDPS Act | Mere Virtual Presence Of Accused Not Relevant If He's Not Informed Of Prosecution's Plea For Extension Of Detention: Kerala High Court

Case Title: Sabarinathan v. State of Kerala

Citation: 2023 LiveLaw (Ker) 260

The Kerala High Court recently held that the decision of the Additional Sessions Judge in a NDPS case, allowing an application for extension of detention and the period of investigation is illegal on account of the failure of the Court to inform the accused as regards the filing of the application and of his right to object to the same.

The Court arrived at the above decision while considering a petition against order allowing Public Prosecutor's application under Section 36A(4) NDPS Act, for the further detention of the accused for a period of 180 days.

Justice Raja Vijayaraghavan V. observed that the failure of the Court to give oral notice would vitiate the entire proceedings.

"The mere fact that the presence of the accused was secured virtually will not serve any purpose as the accused was not made aware of the filing of the application and there are no materials to suggest that the accused was granted an opportunity to formally raise his objections to the application for extension of detention. In that view of the matter, the impugned order cannot be sustained under law," the Court observed.

Financial Transactions With Co-Accused Alone Not Sufficient To Impose Embargo U/S 37 NDPS Act: Kerala High Court

Case Title: Amal E & Anr v. State of Kerala

Citation: 2023 LiveLaw (Ker) 329

The Kerala High Court held that mere reliance on financial transactions and the confession of a co-accused should not be considered sufficient grounds for imposing an embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.

While refraining from making a conclusive finding at this stage, Justice Ziyad Rahman A.A held that the absence of substantial evidence raises reasonable doubt regarding the petitioners' involvement in the case.

"From the perusal of the case records, it can be seen that, apart from the aforesaid (financial) transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the accused, there is nothing."

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

Case title: Nandakumar N v State of Kerala

Citation: 2023 LiveLaw (Ker) 415

The Kerala High Court recently held that there must be strict implementation of the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act, as majority of such cases coming before it involve young persons, adversely impacting the potential growth of the country.

Justice Ziyad Rahman A.A pointed that stringent conditions are stipulated by the legislature for grant of bail under Section 37 of the NDPS Act. It observed that even for Section 302 of the IPC where death penalty is prescribed as the maximum punishment, no conditions as contained in section 37 of the NDPS Act is stipulated for grant of bail. The Court held that bail is not easily given for offences involving NDPS Act for preventing drug consumption and drug trafficking in the society, which is a menace to the society and is now spreading like an infectious disease.

The bench reasoned,

“This is evidently because of the huge impact of drug abuse and drug trafficking on Society as a whole, as the said impact is not confined to any individual or individuals or his/their family. It is something affecting the society as a whole, by corrupting the minds of the young generation. The consumption of drugs, trafficking thereof and their ill effects are like a contagious disease eating up the youth of the country, thereby causing severe adverse impacts on the potential of the country as such. There is a rampant increase in drug trafficking cases nowadays, and not a single day passes without reports of the detection of drug trafficking cases.”

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

Case Title: Vijay Philip v. Narcotic Control Bureau

Citation: 2023 LiveLaw (Ker) 447

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.

Kerala High Court Acquits NDPS Accused Citing Prosecution's Failure To Produce His Alleged Written Consent For Search In Absence Of Magistrate

Case Title: Raveendranath V State of Kerala

Citation: 2023 LiveLaw (Ker) 643

The Kerala High Court recently acquitted an accused under the NDPS Act citing prosecution's failure to produce alleged written communication made to him regarding his right to be searched before Magistrate under Section 50 of the Act and his alleged written consent waiving such right.

Justice N. Nagaresh held that failure on the part of the prosecution to produce communication or consent letter obtained in compliance with Section 50 caused prejudice to the accused. The Court added that the evidence of illicit narcotic drugs / psychotropic substances recovered by the police in violation of the safeguards provided under Section 50 of the NDPS Act cannot be relied upon to convict the accused.

“…The prosecution further stated that the appellant had given his consent to dispense with the presence of gazetted Officer / Magistrate during search, that also in writing. If such communications in writing existed, the prosecution ought to have produced the same before the court. The non- production of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified. In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble. In the afore facts of the case, I find that failure of the prosecution to produce Section 50 communication / information before the court has seriously prejudiced the appellant and conviction of the appellant cannot be justified under the circumstances.”

NDPS Act | Kerala High Court Sets Aside LLB Student's Show Cause Notice, Says College Had Decided His Guilt While Trial Was Still Ongoing

Case Title: Jeevan Ramesh v. Mahatma Gandhi University

Citation: 2023 LiveLaw (Ker) 703

The Kerala High Court recently set aside a show cause notice issued to a final year LLB student of MG University for being named as an accused in an NDPS Case.

The student who was suspended when an FIR had been lodged against him in the aforesaid case, was asked to show cause as to why a compulsory transfer certificate should not be issued to him.

In allowing the student's plea for setting aside the impugned show cause notice, Justice T.R. Ravi observed that the impugned notice would show that the college had already concluded that the student was guilty of possession and sale of narcotic drugs when the trial was not even completed.