Isabella Mariam

The High Court of Kerala Single Bench of Justice Bechu Kurian Thomas dismissed a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioner, who was charged under the Narcotic Drugs and Psychotropic Substances Act, 1985, sought regular bail alleging procedural violations in the search and seizure process. The Court held that there was no violation of statutory requirements under Section 42(2) of the Act, and that the matter of compliance would be considered at trial. Consequently, the application for bail was rejected.

The petitioner was arrested following a raid conducted by the Palluruthy Police Station on 30.01.2025. The case was registered as Crime No. 75/2025 under Sections 22(c) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The accused was alleged to be in possession of 108.938 grams of MDMA, which was reportedly recovered from his residence in five zip-lock pouches following receipt of anonymous information.

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The raid and seizure were conducted by the District Anti-Narcotic Special Action Force (DANSAF), a specialized team constituted under the Kerala Anti-Narcotic Special Action Force (KANSAF). According to the prosecution, the detecting officer received credible information at 2:30 p.m. on the date of the incident, prepared a report, and informed the City Police Commissioner before proceeding to conduct the search.

The petitioner, aged 30, through his counsel, contended that the prosecution's case was false and fraught with inconsistencies. He alleged that the seizure mahazar—the formal record of search and seizure—contained incongruities and procedural lapses that undermined the integrity of the entire investigation.

The primary legal contention revolved around Section 42(2) of the NDPS Act, which mandates that any information received by a law enforcement officer regarding narcotic offences must be reduced to writing and communicated to the officer’s immediate official superior within a stipulated timeframe. The petitioner argued that the Sub-Inspector, a member of the DANSAF, violated this statutory mandate by informing the City Police Commissioner rather than the Assistant Commissioner of Police, who was the designated team leader of DANSAF.

In response, the Public Prosecutor argued that the City Police Commissioner was, in fact, the head of the DANSAF unit in city jurisdictions and thus qualified as the immediate official superior. The prosecution maintained that even if there were minor procedural discrepancies, they did not constitute grounds for granting bail and could only be examined during the trial. It was also submitted that the DANSAF structure and its reporting hierarchy had been duly constituted through executive orders and internal directives, ensuring lawful compliance.

The petitioner further relied on perceived contradictions within the seizure mahazar to suggest that the alleged recovery was fabricated. These claims were refuted by the prosecution as being unfounded and premature for determination at the bail stage.

The trial court had earlier rejected the petitioner’s bail plea in Crl.MC No. 920/2025 by an order dated 08.04.2025. The present application before the High Court was a challenge to the said order.

The Court examined the submissions made by both sides and undertook an analysis of Section 42(2) of the NDPS Act. It recorded: “The term ‘immediate official superior’ in section 42(2) of NDPS Act cannot be interpreted in a manner that destroys the purpose of the provision.”

Interpreting the legislative intent, the Court stated: “The term ‘immediate official superior’ is not to be interpreted in the eyes of bureaucratic hierarchy of officers, but must be interpreted in a manner that has relation to the context.”

The Court referred to the organizational structure of DANSAF and noted: “In the context of DANSAF, certainly, the City Police Commissioner is an ‘immediate official superior’.”

On the legal significance of statutory compliance, the Court observed: “The amendment [to Section 42(2)] indicates the legislative intention. From a mandatory requirement, it has become a discretionary measure. The requirement to intimate the immediate official superior now needs to be carried out only within 72 hours.”

In this regard, the Court relied on the Supreme Court’s ruling in Karnail Singh v. State of Haryana [(2009) 8 SCC 539], stating: “While total non-compliance of requirements of S.42(2) of the NDPS Act is impermissible, the question whether there has been adequate or substantial compliance... is a question of fact to be decided in each case.”

The Court applied this principle to the facts of the case and recorded: “Sending a copy of the information taken down by the Detecting Officer... to the City Police Commissioner is in substantial compliance with the requirement.”

The petitioner had also argued that the Assistant Commissioner of Police was the rightful superior. Addressing this, the Court clarified: “Even otherwise, if it is assumed that the Assistant Commissioner of Police... is regarded as the immediate official superior... still the requirement of section 42(2) of the NDPS Act will stand satisfied by intimation to the Commissioner of the City.”

Regarding the inconsistencies alleged in the seizure mahazar, the Court recorded: “Those are not significant at least at this stage and hence all those matters have to be decided after trial.”

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The Court also referred to Union of India v. Md. Nawaz Khan [(2021) 10 SCC 100] and recorded: “The contention regarding non-compliance with section 42 of the NDPS Act has to be raised in the course of the trial.”

In its concluding directive, the Court noted that, upon a comprehensive consideration of all the circumstances arising in the case, it was of the view that the application lacked merit. On that basis, the Court ordered that the bail application be dismissed.

Advocates Representing the Parties

For the Petitioners: Shri Arjun S., Smt. Chithra Mol R., Smt. Anju P.V.

For the Respondents: Shri Noushad K.A., Public Prosecutor

Case Title: Badusha v. State of Kerala

Neutral Citation: 2025:KER:50644

Case Number: B.A. No. 6388 of 2025

Bench: Justice Bechu Kurian Thomas