The High Court of Kerala has held that violation of mandatory formalities under the NDPS Act, including the search procedure under Section 50 of the Act, constitute "reasonable grounds" under Section 37(1)(b)(ii) to grant bail.
"when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial. I am of the view that it would result in failure of justice to force the applicants to be in custody till the trial is complete. The court's satisfaction within the meaning of sub-section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 235 of the Cr.P.C", observed Justice Raja Vijayaraghavan while allowing the bail application.
Saying that the consideration of issue of existence of reasonable grounds cannot be postponed to the conclusion of trial, the Court went on to hold :
"This Court cannot abdicate from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction".
The Court was dealing with the regular bail application of two persons, who were accused of offences under Sections 22(c), 8(c), 20(b)(ii)A and 29 of NDPS Act for possessing one cover each of ganja and charas, and 23 LSD stamps.
In the case, the Court noted that major discrepancies existed in the arrest memo, search mahazar and notice under Section 50, which raised grave doubts about the veracity of prosecution case. The arrest memo of both the accused revealed that they were arrested at 3.30 p.m. on 9.10.2018. However, the prosecution case was that the vehicle in which the accused were travelling was intercepted at 5 PM. The notice informing the accused of their right to have body search conducted in presence of a gazetted officer was seen served at 3.45 PM. In the notice under Section 50, the details of the LSD strips which were recovered from the body of accused were stated.
"it is difficult to comprehend as to how in the notice issued to the accused purportedly at 3.45 pm, that too prior to search of their person, and prior to even intercepting the car, the detecting officer would be able to mention the exact number and details of the LSD stamps which were seized from them", the Court observed.
The Court wondered how the accused were arrested 15 minutes prior to the issuance of a notice under Section 50 of the NDPS Act. The sequence of events was found to be totally at variance with the descriptions in the mahazar, wherein it is stated that it was after seizure of the LSD that the accused were arrested.
More severe the punishment, greater the duty to comply procedure.
Referring to the SC constitution bench decision in State of Punjab vs Baldev Singh the Court said that the more severe the punishment, greater has to be the care taken to ensure that all the safeguards provided in a statute are scrupulously followed.
The Court observed that the failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.
It was further observed that personal search is a critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The safeguards contained in Section 50 of the NDPS Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. Though the end result is important, but the means to achieve it must remain above board. A procedure based on systematic and unconscionable violation of law by the official responsible for the enforcement of law cannot be considered to be a fair, just or reasonable procedure.
"The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice", observed the Court.