The Kerala High Court has ruled that while considering a bail application under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the court is not required to examine whether there was a violation of mandatory provisions of the Act. The court emphasized that at the stage of bail, the available documents are limited to the First Information Report (FIR), seizure memo, and witness statements, which do not allow for a detailed finding on such issues.
Justice P. V. Kunhikrishnan, while delivering the judgment, stated:
"... this Court is of the considered opinion that violation of the mandatory provisions of the NDPS Act need not be looked into by the bail court while considering a bail application. At the stage of bail, the court only has the FIR, seizure mehazar, and witness statements. Therefore, there cannot be any prima facie finding based on these records at this stage. Unless the entire case is known, the legality of the search and seizure need not be examined in depth by the bail court."
The court further clarified that even if the final report has been filed, the court should avoid making any prima facie finding on statutory violations as it may prejudice the accused or the prosecution in the trial process.
Court’s Concern Over Lawyers’ Contentions in Bail Applications
The court also addressed the issue of how lawyers present their arguments during bail hearings. It observed that an advocate should be careful not to insist on arguments that may later impact the accused's defense during the trial.
The court noted:
"When a lawyer advances contentions in a bail application that may prejudice his client's case in the trial, he should exercise caution. In the present case, despite repeated requests, the lawyer insisted on a decision on the merits of his arguments. Therefore, this Court had no option but to decide the points raised. However, I make it clear that these observations are only for deciding this bail application, and the petitioner is free to raise all these contentions before the trial court at the appropriate stage."
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Case Background
The case involved the seizure of 83.83 kg of ganja from a pick-up van during a routine vehicle check by the police. On seeing the police, two individuals in the van attempted to flee. The police questioned the remaining persons in the vehicle and inspected the contents. Upon opening the travel bags covered with plastic sheets, they found large quantities of ganja inside.
The accused were charged under Section 20(b)(ii)(C) of the NDPS Act, which deals with possession of a commercial quantity of cannabis. The petitioner, the fifth accused in the case, was arrested later and moved a bail application arguing that the seizure was illegal as the procedure under Sections 42 and 50 of the NDPS Act was not followed.
The petitioner contended that since the detecting officer noticed the smell of ganja before opening the bags, the procedure outlined in Section 42 should have been followed.
- Section 42 mandates that officers record information in writing before conducting a search, seizure, or arrest without a warrant.
- Section 50 specifies the rights of an accused during a personal search, requiring the presence of a magistrate or gazetted officer.
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The petitioner argued that the search should not have been conducted without prior written intimation and that the seizure was illegal as it did not follow due process.
The prosecution opposed these claims, stating that the seizure was a chance recovery, meaning that the police officers discovered the contraband unexpectedly. According to the prosecution, compliance with Sections 42 and 50 was not required in such a case.
The Court initially declined to examine whether the mandatory provisions were followed, stating that these issues could be raised during the trial. However, as the petitioner’s counsel insisted, the Court proceeded to address the matter.
Referring to past Supreme Court judgments, the High Court noted that Section 50 applies only when the body of an individual is searched, and not when the contraband is found in a bag or vehicle.
The court relied on the Supreme Court's ruling in State of Kerala v. Prabhu (2024), stating:
"The procedure under Section 50 is required only for personal searches. If the recovery is from a bag and not from the body of the accused, compliance with Section 50 is not necessary."
In the present case, the court observed that the seizure was made from the bag placed in the vehicle and not from the personal possession of the accused. Thus, there was no violation of Section 50.
Regarding the alleged non-compliance with Section 42, the court referred to Union of India v. Md. Nawaz Khan (2021), which held that compliance with Section 42 is not a determining factor in a bail application.
On reviewing the case details, the Court concluded:
"In chance recovery, I am of the prima facie opinion that Section 42 violation need not be considered strictly. Moreover, whether Section 42 was violated is a matter of evidence to be examined during the trial. A bail court need not consider the same in detail. Therefore, that contention is also unsustainable."
Counsel for the Petitioners: Adv. Sumeesh Kumar R
Counsel for the Respondents: Adv. Naushad K. A. (Sr. PP)
Case No: BA 3089 of 2025
Case Title: Jomon v State of Kerala and Another
