HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION NOs.313 AND 1306 OF 2022
COMMON ORDER:-
These two criminal petitions are filed under Section 439 of
the Code of Criminal Procedure, 1973, to enlarge the petitioners
on bail.
2. The petitioners in Crl.P.No.313 of 2022 are A-1 and A-2
and petitioner in Crl.P.No.1306 of 2022 is A-3 in Crime No.163
of 2021 of Andra Police Station, Vizianagaram District.
Therefore, as the petitioners in both the petitions are accused in
the same crime, these petitions are heard together and they are
being disposed of by a common order.
3. A case under Section 20(b)(ii)(C) read with Section 8(c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short 'NDPS' Act) read with Section 34 of the Indian Penal Code,
1860 (for short 'IPC') was registered against the petitioners in
the above crime.
4. Briefly stated, it is the case of the prosecution that on
18.11.2021
at about 4.00 A.M. in the morning when the police on receipt of reliable information regarding illegal transportation of ganja, reached the scene of offence that they found one car bearing No.AP 32 C 4557 being piloted by two persons on motorcycle bearing No.AP 31 EH 6051 and the police stopped the said vehicles and when the persons travelling in the vehicles ran away after seeing the police, the police apprehended them 2 and when they searched the vehicles that they found 52.5 KGs of ganja being illegally transported in the said vehicles. The police have seized the said contraband from the possession of the accused. Therefore, it is stated that the petitioners have committed the aforesaid offences.
5. Heard learned counsel for the petitioners and the learned Additional Public Prosecutor for the State.
6. Learned counsel for the petitioners would submit that the material that was seized from the said vehicles is not ganja. He would submit that as per Standing Instruction No.1.7 of the Standing Instructions issued by Narcotics Control Bureau, New Delhi, police have to conduct colour test on the spot to ascertain whether the material that was seized from the accused is ganja or not, but the police did not conduct such test, as such, the said Standing Instructions are violated. He would also submit that there is violation of Section 52-A of the NDPS Act in as much as no application was filed before the Magistrate as required under the said provision till now. Learned counsel has relied on the decision rendered by the Apex Court in Union of India vs. Mohanlal and Ors.1 (Criminal Appeal No.652 of 2012) regarding the procedure prescribed for seizure and preservation of contraband. So he would submit that when the aforesaid procedure is not complied with, the petitioners are entitled for bail.
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7. He would further submit that as the petitioners have been in judicial custody since 18.11.2021, the petitioners are entitled to bail and prayed for grant of bail to the petitioners. He would also submit that two gunny bags have been seized, each gunny bag contains several packets and instead of collecting samples from each packet, police have collected samples only from two packets of one gunny bag and one packet of another gunny bag. Therefore, he would pray for grant of bail.
8. Learned Additional Public Prosecutor vehemently opposed the petition. He would submit that total quantity of ganja that was found and seized from the possession of the petitioners is 52.5 KGs of ganja which is a commercial quantity. Therefore, the bar under Section 37 of the NDPS Act applies to the present facts of the case. He would submit that investigation in this case is pending. Therefore, the petitioners are not entitled to bail at this stage. He would submit that in the State of Andhra Pradesh, there is no material supplied to the police to subject the contraband to colour test as per the Standing Instructions relied on by learned counsel for the petitioners. He would submit that when the Magistrate is not immediately available, the police are empowered to collect samples. He would contend that mere violation of any procedure regarding seizure of contraband cannot be a valid ground for grant of bail and they are only the issues which are to be considered after trial of the case is completed and at the time of final adjudication of the case and they are not valid grounds for grant of bail. In support 4 of his contentions, he relied on a judgment of Delhi High Court in the case of Arvind Yadav In JC vs. Govt. of NCT, Delhi (in Bail Petition No.1416 of 2021 & Crl.M.A.No.6684 of 2021). Therefore, he prayed for dismissal of the petition.
9. Perused the record.
10. The record reveals that on 18.11.2021 at about 4.00 A.M. in the morning, when the police reached the scene of offence on receipt of reliable information regarding illegal transportation of ganja, they found vehicles in question where two persons are piloting on motorcycle and one person is travelling in a car and when they tried to escape, the police apprehended them and when they searched the said vehicles, they found two gunny bags containing ganja in various packets and the police have taken samples from some packets and thereafter seized the said contraband under the cover of mediators report.
11. Learned counsel for the petitioners vehemently contended before this Court that when several packets were found in two gunny bags that the samples have to be collected from each packet of gunny bags and as samples are not collected from each packet found in gunny bag that there is violation of procedure relating to collection of samples in this regard. He also contended that the application has to be filed before concerned Magistrate and contraband has to be seized in his / her presence and the same has not been done in this case. He would also contend that as per Standing Instructions of 1.7, 5 a colour test has to be conducted but, the same has not been done, as such there is violation of Standing Instructions of NCB, New Delhi. Therefore, in view of the said violation, petitioners are entitled for bail.
12. The total contraband involved in this case is 52.5 KGs of ganja which is undoubtedly a commercial quantity. Therefore, the bar under Section 37 of the NDPS Act applies to the present facts of the case. There is nothing to indicate on record that the petitioners are not guilty of committing the said offence. Although it is contended by learned counsel for the petitioners that the material that is seized is not ganja, answering the pointed question of the Court that if the material that is seized from the possession of the petitioners is not ganja, then what is the material found in their possession, learned counsel for the petitioners would submit that he could not right now answer as to what is the material that was found in the possession of the petitioner and he has no instructions to that effect. Therefore, when the prosecution contends that ganja was found from the possession of the petitioners and when the same was seized and when the petitioners contend that it was not ganja, then they have to explain what is the material that was seized from their possession on the date of offence. As no such explanation is prima facie offered at this stage, it cannot be held that the material that was seized is not ganja.
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13. As regards violation as pointed out by learned counsel for the petitioners that the procedure contemplated under Section 52-A of the NDPS Act is not followed and colour test has not been done, as per the submission made by learned Additional Public Prosecutor, the said violation of procedure cannot be a ground for grant of bail and these are the matters to be only looked into at the time of final adjudication of the case after the trial is conducted and as such, the petitioners are not entitled to bail on that ground. Learned Additional Public Prosecutor would also submit that in the case of Union of India vs. Mohanlal and Ors (referred supra) the Hon'ble Apex Court only dealt with how to preserve ganja that was seized and it does not indicate that the accused are entitled to bail for violation of any procedure prescribed under law. On the proposition of law that mere violation, if any, that is pointed out relating to procedure to be followed for seizure of ganja cannot be a ground for grant of bail, in the judgment of Delhi High Court referred in the case of Arvind Yadav's case (referred supra), the Delhi High Court at Paragraph No.13 held as follows:
"By this petition, petitioner seeks bail on the ground of non- compliance of Section 52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing a appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground".7
14. Therefore, in view of the aforesaid analogy laid down in the judgment of the Delhi High Court the legal position is clear that mere violation of procedure relating to seizure of contraband pointed out by learned counsel for the petitioners cannot be a ground for grant of bail as this would be a matter to be considered during the course of trial. Therefore, this Court is of the considered view that in the facts and circumstances of the case and more particularly as the investigation is pending, the petitioners are not entitled to bail at this stage.
15. Resultantly, both the Criminal Petitions are dismissed.
_____________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date : 07.03.2022 KA 8 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL PETITION NOs.313 AND 1306 OF 2022 Date : 07.03.2022 KA