Dismissed

Rajesh v. State of Kerala

Kerala HC12 Nov 2020Bail Appl./5695/2020

Case brief

AI extract

What is this about?

In an anticipatory bail application under Section 438 Cr.P.C., the Court rejected the contention that a technical violation of Section 52A of the NDPS Act mandated bail. The judge dismissed the application, ordering the applicant to surrender and seek regular bail if arrested, noting the grievous nature of the offence.

What did the court decide?

Bail application dismissed; applicant directed to surrender within two weeks and apply for regular bail if arrested.

Rajesh Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942

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Bail Appl.No.5695 OF 2020

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CRIME NO.26/2020 OF Thrissur E.E. & A.N.S.S , Thrissur

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PETITIONER/S:

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RAJESH P.P, AGED 30 YEARS, S/O PAULSON, PULIKOTTIL HOUSE, ANTHILAMKAVU DESOM, CHITTILAPPILLY VILLAGE, CHITTILLAPPILLY P.O, THRISSUR TALUK, THRISSUR DISTRICT – 680551.

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BY ADV. SRI.C.DHEERAJ RAJAN

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031.

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OTHER PRESENT:

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SRI.C.N.PRABHAKARAN, SR PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl.No.5695 OF 2020

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O R D E R

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Dated this the 12th day of November 2020

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This is an application for anticipatory bail under

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Section 438 of Cr.P.C.

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The applicant is the sole accused in Crime

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No.26/2020 of Excise Enforcement and Anti Narcotic Special Squad, Thrissur for having allegedly committed the offence punishable under Section 20(a) of the

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Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

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The prosecution case, in brief, is that on

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10.08.2020 at about 11.50 AM, the Excise officials of

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the Squad conducted a search at the premises of the

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residential house of the applicant and seized two cannabis plants having 70 cms. and 35 cms. length from

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the terrace of the house and accordingly the crime was

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registered and the accused was implicated as an accused for the offences.

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Bail Appl.No.5695 OF 2020

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The applicant states that he is innocent and the allegations are not true. It is further stated that the contraband articles were produced before the Sessions Court having jurisdiction and thereafter as per Annexure A4 it was realised that the articles ought to have been produced before the Magistrate Court and the procedure under Section 52A of the NDPS Act ought to have been complied with. But, unfortunately, it was directly produced before the Sessions Court, and therefore, the request was made as per Annexure A4 to the Sheristadar of the District Court to return the articles because on the production of the contraband articles before the Kunnamkulam Magistrate Court on 11.08.2020 he did not accept it and had orally directed the Excise officials to produce it before the Sessions Court and that is why the articles were happened to be

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produced before the Sessions Court by mistake. The Sheristadar directed the articles to be returned and thereafter it was produced before the Magistrate Court.

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Bail Appl.No.5695 OF 2020

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Heard the learned Counsel for the applicant and the learned Public Prosecutor.

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The learned Counsel for the applicant submits that there is very serious default committed by the Excise officials in producing the contraband articles

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before the Sessions Court directly and it was also

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informed the court to return the articles, and therefore, the procedure under Section 52A of the NDPS Act has not been complied and hence, the applicant is entitled to anticipatory bail.

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The learned Public Prosecutor submits that it

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was a mistake on the part of the Magistrate in not having received the contraband articles in the first instance and there was a direction given to the Excise officials to produce it before the Sessions Court having jurisdiction under the NDPS Act. That is how the articles were produced before the Sessions Court. Thereafter, it was realised that the Magistrate had

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gone wrong in not receiving the articles and also not complying with the provisions under Section 52A of the

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Bail Appl.No.5695 OF 2020

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NDPS Act. Consequently, it was returned from the District Court through the Sheristadar, who had

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received the articles earlier and that is how it was again produced before the Magistrate.

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The mistake committed by the Magistrate cannot

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be taken as a defence by the learned Counsel for the

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applicant to seek anticipatory bail in a crime registered under the NDPS Act. Considering the arguments raised by both sides, I find that the technical flaw, which has occurred, cannot be taken advantage of by the applicant at the stage for seeking anticipatory bail. The offence is grave and he has to

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surrender before the investigating officer within two weeks and in the event of his being arrested, he shall be produced before the jurisdictional Court, where he

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is at liberty to apply for regular bail and the application so filed by the applicant shall be preferably disposed of on the same day. The applicant

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is at liberty to raise all his arguments regarding the

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impropriety in not complying with the procedure under

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Bail Appl.No.5695 OF 2020

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Section 52A of the NDPS Act before the trial court at the appropriate time. With these observations, the

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Bail Application is dismissed.

Sd/-

dkr

ASHOK MENON

JUDGE

Rajesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajesh v. State of Kerala

Case brief

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What did the court decide?

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