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Lack of Temporal proximity to prejudicial activity is a ground for quashing of detention order: Kerala High court.

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Case Title: Prabhulla P vs State Of Kerala

Case No: 3/1/2024

Decided on: WP(CRL.) NO. 852 OF 2023

Coram: The Hon’ble Mr. Justice A. Muhamed Mustaque & The Hon’ble Mrs. Justice Shoba Annamma Eapen

 

 

Facts of the Case

The detenu was detained invoking provision of the Kerala Anti Social Activities (Prevention) Act, 2007 in the year 2009. The detenu is under detention since 03.05.2023.

Counsel for the petitioner contended that the recent amendment to Section 13 of the NDPS Act precludes further detention under its terms for a year. This assertion stems from the petitioner’s earlier detention under the unamended Section 12 of the Kerala Anti Social Activities (Prevention) Act. This raises a legal question in the current proceedings.

The legal instrument of a detention order serves to curtail an individual’s freedom of movement and autonomy.

The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. He was released on 01.03.2023.

Legal Provision

Section 12 of Kerala Anti Social Activities (Prevention) Act, 2007:

Maximum period of detention – The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.

After the 2014 amendment , Section 12 was read as-

Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.

Section 13 of the Narcotic Drugs and Psychotropic Substances Act–

 Special provisions relating to coca plant and coca leaves for use in the preparation of flavouring agent.—Notwithstanding anything contained in section 8, the Central Government may permit, with or without conditions, and on behalf of Government, the cultivation of any coca plant or gathering of any portion thereof or the production, possession, sale, purchase, transport, import inter-state, export inter-State or import into India of coca leaves for use in the preparation of any flavouring agent which shall not contain any alkaloid and to the extent necessary for such use

 Issues

Whether detention order can be passed under Section 12 of the Kerala Anti Social Activities (Prevention) Act, 2007?

Court decision and analysis

The court did not take into account the earlier detention order which was in the year 2009, for imposing maximum one-year detention after 31.12.2014. There is no embargo under the law to detain such persons, who was detained prior to 31.12.2014 for a period of six months.

The Detaining Authority issued the detention order on April 10, 2023, a considerable five months after the District Police Chief, Thiruvananthapuram Rural, submitted the preliminary report on January 13, 2023. Notably, the initial report by the Station House Officer had already been filed on December 22, 2022. No explanation has been provided for this significant delay.

Therefore, considering the aforementioned circumstances, The High Court of Kerela found that the necessary temporal proximity between the last prejudicial activity and the issued detention order was absent. Consequently, the impugned detention order was hereby quashed. The petitioner was released forthwith, barring any other legal reason for continued detention.

This Writ Petition was disposed of.

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Written by- Bhawana Bahety

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Delhi High Court Denies Relief to Nigerian National in NDPS Case   

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Case Title: Kenechukwu Joseph v. The State 

Date of Decision: September 21, 2023 

Case Number: BAIL APPLN. 352/2023 

Coram: Hon’ble Mr. Justice Dinesh Kumar Sharma 

 

Introduction 

 

This case revolves around a bail application filed by Kenechukwu Joseph under Section 439 of the Code of Criminal Procedure (Cr.P.C.). The petitioner seeks bail in a case registered under Section 21(c) of the NDPS Act (Narcotic Drugs and Psychotropic Substances Act) and Section 14 of the Foreigners Act. The petitioner alleges that he was falsely implicated in a drug-related case and has been in custody since January 16, 2020.  

 

Factual Background 

 

On January 16, 2020, the special staff office received a secret tip-off regarding the transportation of narcotics substances. Acting on this information, a team was formed, and a trap was set near Hotel Radisson Blu, Paschim Vihar, Delhi. The petitioner, Kenechukwu Joseph, a Nigerian national residing in Delhi, was apprehended. During a search, a poly bag containing 140 grams of cocaine was found in his possession. Two samples of 5 grams each were extracted, and the remaining 130 grams were seized. Subsequently, the case was registered under the NDPS Act, and the investigation commenced. 

 

Legal Issue 

 

The primary legal issue in this case revolves around the petitioner’s eligibility for bail under Section 37 of the NDPS Act, which pertains to offenses being cognizable and non-bailable. 

 

   

Contentions 

 

The petitioner’s counsel argued that the petitioner was falsely implicated, citing discrepancies in the arrest location and contradictions in the prosecution’s version of events. They also raised concerns about tampering with the narcotics samples and the sealing of evidence. The petitioner had been in custody for over three years, and only a fraction of the witnesses had been examined, making a lengthy trial likely.  

   

The state’s counsel opposed the bail application, asserting that the petitioner was found in possession of a commercial quantity of cocaine. They also highlighted the petitioner’s non-resident status and lack of a permanent address in India, raising concerns about potential absconding. 

 

Observation and Analysis 

 

The court observed that Section 37 of the NDPS Act imposes strict conditions for granting bail in cases involving commercial quantities of narcotics. It requires a court to be satisfied that the accused is not guilty and is unlikely to commit further offenses while on bail.  

   

The court cited precedents indicating that procedural lapses, such as issues with sampling and sealing of evidence, should be assessed during trial, not during bail hearings. Non-compliance with these procedures may affect the probative value of evidence but does not automatically vitiate the trial. 

 

Decision and Conclusion 

 

The court concluded that the petitioner was not entitled to bail at this stage. The issues related to sampling, contradictions, and tampering should be examined during the trial. Given the seriousness of the charges and the quantity of narcotics involved, the court found no grounds to grant bail to the petitioner. Thus, the bail application was dismissed. 

 

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Written by – Ananya Chaudhary 

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The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, on the grounds of prolonged incarceration and blatant violation of his Article 21 right.

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The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, on the grounds of prolonged incarceration and blatant violation of his Article 21 right.

Title: Raju Lama v. State

Decided on: July 17, 2023

Citation: 2023 SCC OnLine Bom 1424

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, found in possession of drugs, owing to prolonged incarceration and violation of his Article 21 right.

Facts of the Case

This case is an application for bail for the offences punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The applicant was arrested on 29.11.2020. At the time of arrest, it is alleged that the raiding party seized 2.5 kgs of charas which was in the dikky of a scooter parked by the applicant. The applicant is in custody for more than two years and nine months. The prosecution has cited sixteen witnesses and proposes to examine nine more witnesses. The applicant is requesting for a bail from Court.

Court Analysis and Judgement:

The counsel for the applicant submitted that the last date when the third witness was examined was on 23.03.2023 and since then there is no progress in the trial. The trial is likely to take some time to conclude. Supreme Court case Rabi Prakash v. State Of Odisha was cited to contend that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(i)(b)(ii) of the NDPS Act. The Court held that the applicant is entitled for bail on the ground of prolonged incarceration and because there are no criminal antecedents reported against the applicant. Also, the Court held that the likelihood of the applicant committing an offence of a similar nature is highly improbable. The Court therefore granted the applicant bail as he is a resident of Himachal Pradesh. He was released on bail upon furnishing a bond worth rupee 1,00,000.

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Written by- Reema Nayak

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Delhi High Court released the petitioner on bail in the case under NDPS act and held that trial is likely to take time, thus cannot be kept in prison for long.

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Title: ANITA @ KALLO versus THE STATE (NCT OF DELHI)

Date of decision: 18th July, 2023

+ BAIL APPLN. 957/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

Delhi High Court released the petitioner on bail in the case under NDPS act and held that trial is likely to take time, thus cannot be kept in prison for long. It also took note that quantity seized from co-accused cannot be clubbed with the petitioner thus rigours of section 37 of NDPS Act would not apply.

Facts of the case

The petitioner is requesting regular bail in FIR No. 256/2022, filed at Police Station Crime Branch in Delhi, under Sections 21/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The petitioner’s attorney claims that the disclosure statement of co-accused Shahban was the reason for the petitioner’s detention at the age of roughly 37. It is also claimed that the petitioner’s person contained just 89 grammes of heroin.

Even though the Forensic Science Laboratory (FSL) Report is still pending, the chargesheet has already been submitted.

Analysis of the court

In the current instance, 89 grammes of heroin were recovered from the petitioner, which is an intermediate rather than a commercial quantity. The recovery from the petitioner cannot be combined with the recovery from the co-accused, according to the ruling in Anita v. State (NCT of Delhi). As a result, in my opinion, the facts and circumstances of the current case do not meet the requirements of Section 37 of the NDPS Act.

The petitioners cannot be detained for an endless amount of time in light of the aforementioned reasons and the likelihood that the trial would drag out. As a result, the court finds it appropriate to give the petitioners bail.

 the petition is granted, and the petitioner is instructed to be freed upon submitting a personal bond for Rs. 50,000 along with one surety for the same value, subject to the pleasure of the Trial Court.

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Written By Shreyanshu Gupta

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Patna High Court directed the District Court to release the car in favour of the petitioner after verifying the registration of the car

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TITLE: Sukh Sagar Kumar v. The State of Bihar & Ors.

Decided on: 20-07-2023

Cr.WJC No: 1491/2022

Coram: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA 

Facts of the case:

The order dated 06.09.2022, issued in NDPS Case No. 30/2021 by the learned 1st Additional Sessions Judge, Begusarai, has been challenged in the current writ application.

The petitioner’s car, with registration number BR 09 AJ/0706, was parked outside the home of the accused identified in the FIR when a search was conducted, and 385 gms. of brown sugar were found inside the vehicle. These are the key facts that gave rise to the current writ application. It has been claimed that the car in question was used by the accused individuals listed in the FIR to carry illegal substances, and brown sugar has also been found inside. As a non-FIR named accused, the petitioner has been added.

Learned Counsel for the petitioner claims that the vehicle that was seized and whose registration number is BR 09 AJ/0706 belongs to the petitioner. He was unaware that brown sugar was kept in the vehicle. He further states that the petitioner is not named in the First Information Report and that the police actually seized his car on December 2, 2021, as would be clear from the GPS data, but that the police only revealed the actual seizure on December 3, 2021, after the First Information Report was filed against other accused parties. The petitioner has attached the registration certificate as proof of ownership. He additionally submits that the confiscation action has not yet begun and that it cannot begin until the trial is over in accordance with Section 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He also asserts that because the car in question is stored in the police station’s open area, it is constantly deteriorating and losing its ability to go on public roads. 

On the other hand, the State’s learned counsel opposes the petitioner’s request to have the car released in his favour while the trial and/or confiscation proceedings were ongoing, arguing that the petitioner knew the car was being used to transport a prohibited substance and that it was parked in front of the accused people’s home. Furthermore, he claims that the in question car has been found to contain a commercial amount of brown sugar.

Analysis of the court and decision:

The court has heard counsel for petitioner and learned Additional Public Prosecutor for the State.Reviewing Section 60 of the 1985 Narcotic Drugs and Psychotropic Substances Act, it appears that any conveyance used to transport such substances is subject to confiscation if it can be demonstrated that the owner of the vehicle or conveyance knew about or approved of its use. There cannot be any confiscation in the initial instance without any such material.

Sections 451 and 457 of the Code of Criminal Procedure, 1973, which deal with the court’s authority to order the disposal or custody of the property pending trial in certain cases and the procedure by the police upon seizure of the property, would apply to the question of the car’s release in light of the aforementioned facts.

Accordingly, the order dated 06.09.2022, passed by the learned 1st Additional Sessions Judge, Begusarai, in NDPS Case No. 30/2021, arising out of Sahebpur Kamal Police Station Case No. 288 of 2021, is set aside and the learned District Court is directed to release the car, in question, in favour of the petitioner after verifying the ownership/registration of the car within a period of four weeks from the date of receipt/production of a copy of this order, subject to the following conditions:- 

(1) That the petitioner shall furnish bank guarantee of Rs. 3 Lacs to the satisfaction of the learned District Court; 

(2) That before handing over the car to the petitioner, a detailed and proper Punchnama of the said car, after taking its photograph, shall be prepared; 

(3) That the petitioner shall also execute bond that the car, in question, shall be produced as and when required at the time of trial or confiscation proceeding; and

(4) That petitioner shall also furnish an undertaking on oath that he shall not alienate or part with the ownership of the car, in question, till pendency of the trial or confiscation proceeding, if any. 

With the aforesaid directions and observations, this application is allowed.

There shall be no order as to costs. 

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Written by- Meghana D

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