Firoz K.M vs State Of Kerala

Mohammed Nias C.P., J

This is an application filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.

The petitioner is the accused in Crime No.16/2023 of Kozhikode Excise range Office, Kozhikode, having allegedly committed offences publishable under Sections 20(b)(ii) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act.

The prosecution case is that on 14.03.2023 at about 12 noon, the petitioner was found in possession of 2 kilograms of ganja transported in a car bearing registration No.KL 77 A 2522 through Arayidathpalam-Eranhipalam Mini Bye pass road. Thereafter, on the basis of the disclosure statement made by the accused search was conducted in a house occupied by the accused in ward No.31 of Kozhikode Corporation and 35 Kilograms of Ganja and 761 grams of Hashis oil were seized. The accused possessed a commercial quantity of ganja and an intermediary quantity of hashish oil, thereby committing the above offence.

Learned counsel for the petitioner and the learned Public Prosecutor were heard.

Learned counsel appearing for the petitioner argues that the allegation is that 35 kilograms of ganja was seized from the custody of the petitioner in 17 different packages, and as such, Rule 3 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, the narcotic substances found in packages or containers, such packages shall be weighed separately serially numbered the detecting officer has no right or authority to mix the contraband seized from the different packages into one package. Further, Rule 10 of the said Rules mandates that such separately seized packages or containers seized in compliance with Rule 3 can be bunched in lots of not more than forty packages or containers only and confirm that all the packages are of identical size and weight, bearing identical marking and the content of each packages give identical results on colour test by the drugs identification kit. Thus, it is argued that there is a total violation of the 2022 Rules and that the prosecution records reveal that even though the ganja was seized in 17 different packages, they were not packed separately. The prosecution records further show that the detecting officer mixed all the contraband seized from different packages. Thus, relying on the decision in Mangilal v. State of Madhyapradesh (2023 live law (SC) 549) which held that all the standing instructions/guidelines issued under Section 52A of the NDPS Act have to be mandatorily followed.

Learned Public Prosecutor, however, argues, relying on the judgment of the Supreme Court in Sumit Tomar v. State of Punjab [2012 (4) KLT SN 117], that mixing of contents of two bags does not cause prejudice to the accused and it is not necessary that police should have taken two samples each from the two bags.

I heard learned counsel on either side.

The contention that mixing up the contraband is in violation of the rules appears to be primafacie correct, going by the final report submitted. The final report clearly states that all the contraband was mixed together. The final report produced as Annexure 1 states that all the packets seized were mixed together, which is, prima facie, a violation of Rule 3.

However, even if the contention of the petitioner is accepted, the fact that 761 grams of Hashish Oil was also seized, the seizure of which cannot be complained by the petitioner. Under such circumstances, it cannot be said that there is an infraction with respect to the seizure of hashish oil. Even if it is assumed that section 37 does not apply, for there has been an infraction of the Rules regarding ganja, there is still a valid seizure of an intermediate quantity of hashish oil. The search and seizure itself was made on the basis of the disclosure statement made by the accused. It is clear that the petitioner is dealing with different kinds of contraband. For this reason, I am not inclined to grant bail to the petitioner.

Accordingly, the application is dismissed.