Aishwarya Rathore-
Published on: August 02, 2021 at 1:07 PM
Kerala High Court has observed that if the search and seizure are erroneous, it will cut to the root of the prosecution case.
Hence, such an aspect might be considered at the stage of investigation for granting bail.
Justice K. Haripal was hearing two bail applications in connection with an FIR filed under Sections 22(c) and 29 of the Narcotic Drugs And Psychotropic Substances Act.
Facts of the case:
According to the Prosecution, on April 17, 2021, the Police Officials were attending routine patrolling work when they came across the petitioners who were standing near the motorcycle.
They stopped the vehicle and asked for their identities, after that the Sub Inspector examined their bodies to see if they were carrying any illegal weapons.
When nothing was discovered, they revealed their names, and then, in order to confirm whether the identities stated by them were correct, the Sub Inspector asked them to open their purses.
At that time, an LSD stamp was found in the purse of the first accused, and smoking papers were found in the purse of the second accused.
Thus, the accused were arrested under Sections 22(c) and 29 of the NDPS Act, after seizing 0.110 grams of LSD from the second accused.
It may be noted that till July 6, 2021, the police proceeded as though the quantity of contraband was 0.110 mg. However, later on, it was discovered that it was a mistake on the part of the Sub Inspector and other police officers to show the quantity of contraband as 0.110 mg, the actual quantity was 0.110 grams.
The Court observed, “It is true that the detection of the crime was not the direct result of the body search conducted by the Sub Inspector. As noticed earlier, he had searched the body of the petitioners immediately on seeing them, for the purpose of ascertaining whether they carried any arms or weapons with them. At that time, the slightest doubt was not there to suspect that they had carried any offensive articles like Narcotic Drugs or other substances. They had readily related their name and addresses and only when the Sub Inspector wanted to counter check the addresses that they were asked to open their purses.”
The Court also said, “Before conducting the body search, the right of the petitioners to be searched in the presence of a Gazetted Officer or a Magistrate should have been conveyed to them, which was not done.”
Thus, the bail applicants were granted bail on the condition to execute a bond for Rs.1,00,000/- each with two solvent sureties each for the like sum to the satisfaction of the Jurisdictional Court.
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