Mohammed Ajmal V.A vs State Of Kerala

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking regular bail.

The applicant is the accused No.4 in Crime No.758/2026 of Kunnamkulam Police Station, Thrissur District. The offences alleged are punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’).

The prosecution case, in short, is that on 17.06.2026, at 3:50 a.m., upon receiving confidential information, the police party conducted a search of a car bearing registration number KL-48-T4401. The vehicle had travelled from Chalissery Bhagam to Perumbilavu Bhagam, where the accused Nos.1 and 2 were found. During the search, 36.560 kilograms of Ganja were recovered from the car. During the investigation, it was revealed that the accused Nos.1 to 4 procured the contraband from Andhra Pradesh for sale and the accused Nos.1 and 2 brought the same to Kerala in the car arranged by the accused No.5.

I have heard Sri.Nireesh Mathew, the learned counsel for the applicant and Sri.Vinay V., the learned Senior Public Prosecutor. Perused the case diary.

The contraband involved in this crime was seized between sunset and sunrise from a car. The main contention canvassed in the bail application is that since the alleged search and seizure in this crime was conducted based on prior information, in a car, between sunset and sunrise, without obtaining a warrant from the jurisdictional Magistrate and without recording or forwarding any grounds of belief as mandated under Section 42 of the NDPS Act, the search and seizure are vitiated and the applicant is entitled to bail. In support of his submission, the learned counsel for the applicant relied on the latest decision of this Court in Muhammed Sahal v. State of Kerala [2026 KHC OnLine 501]. On the other hand, the submission of the learned Senior Public Prosecutor is that the question whether there was compliance with the procedure laid down under Section 42 of the NDPS Act is a question of fact and need not be considered while considering the bail application.

Admittedly, the contraband was seized between sunset and sunrise from a car. The proviso to subsection (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Sub-section (2) of Section 42 mandates that the empowered officer who has taken down information in writing or records the grounds for his belief under the proviso to subsection (1), should send a copy of the same to his immediate official superior within seventy two hours. In Muhammed Sahal (supra), this Court held that the “grounds of belief” mentioned in the proviso to Section 42(1) must contain the statutory satisfaction that obtaining a warrant or authorisation would have resulted in concealment of evidence or escape of offenders. I have perused the ground of belief which forms part of the case records. It cannot be treated as grounds of belief under Section 42 of the NDPS Act since it does not contain any reason recorded by the detecting officer for conducting the search in a conveyance without obtaining a warrant so as to avoid concealment of evidence or escape by the offender. Hence, there is total non-compliance with Section 42 of the NDPS Act. In Muhammed Sahal (supra), it was held that while considering a bail application, compliance with Section 42 is mandatory and is a relevant factor to be taken into account. Therefore, the applicant is entitled to be released on bail.

In the result, the application is allowed on the following conditions: -