The Kerala High Court has criticised the usage of fashionable expertise for finishing up ‘secretive transactions’ for acquiring contraband articles and has held that such actions represent a related consideration whereas deciding purposes for bail beneath Section 37 of the Narcotic Drugs and Psychotropic Substances Act (‘NDPS Act’).

Single Bench of Justice Ziyad Rahman A.A. famous that by the usage of Apps equivalent to Wickr App and Binance App, the petitioner-accused on this case sought to make sure that the transactions carried out by him remained untraced.

“The eagerness to maintain secrecy is something very crucial at this stage and relevant for considering the ‘reasonable grounds’ as contemplated under section 37 of the NDPS Act (‘Offences to be cognizable and non-bailable’). The dependence of the petitioner upon the Apps that enabled him to have transactions without any trace and silence maintained by him as to the purposes of such transactions is one of the crucial circumstances,” the Court noticed whereas refusing bail. 

The Court took the strict view that until such makes an attempt to utilize superior expertise in committing offences beneath the NDPS Act are nipped within the bud, the aim behind the stringent provisions of the Act can be defeated, and the objects behind its enactment wouldn’t be achieved. 

Further lamenting the affect of drug abuse on the society, the Bench noticed:

“…one of the crucial aspects to be considered is the purpose for which the stringent provisions in the NDPS Act are incorporated. It is to be noted that, even for offences under Section 302 of the IPC, for which capital punishment is prescribed, the conditions for bail as contemplated under Section 37 (of the NDPS Act) are not prescribed. This is presumably because of the serious impact of the offences under the NDPS Act, on society as a whole. In the case of murder, the impact is mostly confined to an individual or his family; whereas the impact of drug abuse and drug trafficking mainly affects the young generation, thereby causing its impact on the growth of the country as such”. 

The 29-year-old accused allegedly positioned order for 51.32 gms of MDMA and seven.23 gms of Cocaine, by ‘Wickr Me’ App – a facility to hold out transactions by the darkish internet anonymously. However, being suspicious of the parcel obtained (from a overseas nation), the Post Office knowledgeable the Narcotics Control Bureau (NCB).

The petitioner allegedly admitted to having positioned the order for the contraband articles by the darkish internet on the aforementioned app, and making the fee for a similar by the Binance cryptocurrency buying and selling App, utilizing Monero (XMR) foreign money. He additionally provided the screenshots of the transaction made by him by the Binance App. His cell phone was subsequently seized by the NCB and despatched for evaluation. At the time of the current bail utility, the NCB had accomplished the investigation and submitted a criticism earlier than the Sessions Court in Ernakulam. 

The counsel for the petitioner argued that there was nothing to point the petitioner’s function other than the truth that the parcel was addressed in his title. As regards petitioner’s assertion beneath Section 67 of the NDPS Act (Power to name for info), the counsel contended that the identical was not admissible in proof in gentle of the regulation laid down in Tofan Singh v. State of TN (2021). It was added that the prosecution couldn’t acquire any supplies to show the transactions carried out by Wickr Me and Binance Apps. 

Advocate Navaneeth N. Nath showing on behalf of the NCB argued that since 51.5 gms of MDMA was recovered from the parcel, the identical would quantity to industrial amount, to which, the rigour beneath Section 37 of the NDPS Act (‘Offences to be cognizable and non-bailable’) would apply. 

The Court on this case was of the view that other than the assertion of the petitioner, there have been a number of different supplies as nicely for establishing the petitioner’s admission. The Court famous that altogether there have been 5 transactions, the entire worth of which was equal to INR 55,000/.

Court additionally famous that the App is a fee pockets which permits funds with out reflecting the identical in checking account, resulting from which the main points of the recipients couldn’t be obtained herein. However, it stated that the transactions had occurred on two days instantly earlier than the parcel was despatched to the petitioner’s tackle. 

As regards the Wickr Me App, the Court took be aware that the App offers end-to-end encryption of textual content, image, audio, video, and messages, and the encrypted messages are quickly saved within the server of the service suppliers, and as soon as the recipient downloads the identical, the messages can be mechanically deleted.

The Court was of the thought-about opinion that meticulous evaluation of the supplies is required to be made solely on the time of trial, and that at this juncture, it was solely involved with whether or not the petitioner must be granted bail. in view of stipulations in Section 37 of the NDPS Act.

On consideration of the side that the petitioner had relied upon Apps that enabled him to have transactions with none hint and the silence maintained by him as to the needs of the transactions, the Court was of the view that the identical have been essential circumstances.

“Indeed, the petitioner has no obligation to divulge the details of the said transactions, as he has every right to remain silent, and the burden is on the prosecution to establish the complicity of the petitioner. However, in my view, when trying to find out the reasonable grounds to satisfy the dual conditions in section 37 of the Act, those aspects have some crucial importance,” the Court noticed. 

Accordingly, and on being attentive to the target behind the stringent provisions of the NDPS Act, the Court was of the agency view that the case didn’t warrant any leniency and needed to be handled strictly. 

The bail utility was thus dismissed. 

The petitioner was represented by Advocates Salim V.S., A.M. Fousi, and A.B. Ajin. 

Also Read: Rigour Like S.37 NDPS Act Not Even Prescribed For Grant Of Bail To Murder Accused, Such Is Impact Of Drug Abuse On Society: Kerala High Court

Citation: 2023 LiveLaw (Ker) 447