HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION No.3615 of 2023
ORDER:
Heard Sri Gopala Krishna Gokhaley, learned counsel for the petitioners, as well as Sri Karunasagar, learned counsel, who represented the learned Deputy Solicitor General of India, who represented the respondent-Union of India.
2. This Criminal Petition is filed under Section 439 Cr.P.C. seeking the Court to enlarge the petitioners, who are arrayed as accused Nos.1 to 3 in S.C.No.24 of 2022 that is pending before the Court of Special Judge for trial of cases under the Narcotic Drugs and Psychotropic Substances Act, Ranga Reddy District at L.B.Nagar, on bail.
3. The matrix of the case, as could be perceived through the contents of the complaint and the relevant material that is brought on record, is that on 20.6.2021, the Intelligence Officer, Narcotics Control Bureau, Hyderabad, received information that four persons, who hail from Maharashtra, are likely to traffic substantial quantity of ganja via Hyderabad. On that, he furnished the information to the 2 Dr CSL, J Crl.P.No.3615 of 2023 Superintendent, Narcotics Control Bureau, Hyderabad Sub- zone. The Superintendent, Narcotics Control Bureau, Hyderabad Sub-zone, instructed the Intelligence Officer to conduct search and seize the material. Based on the information received, immediately two persons were secured as mediators and the search party along with the mediators reached Pedda Amberpet Toll plaza at about 8.00 pm. At about 9.00 pm., a truck bearing registration No.MH 25 U 0208 was found proceeding. The said vehicle was intercepted and stopped. Petitioner No.2 was found driving the said vehicle, while petitioner Nos.1 and 3 were present in the vehicle along with one juvenile in conflict with law. Giving information about the identity particulars, all those persons were questioned. The truck was verified and police found some gunny bags containing broken shells of cashew nuts and also found 90 plastic boxes containing 1,080 packets of ganja, each packet weighing 2 kgs. The contraband was seized.
4. Making his submission that the petitioners are languishing in jail since long time and the trial proceedings are yet in progress and there is no possibility of the 3 Dr CSL, J Crl.P.No.3615 of 2023 proceedings getting concluded within short time and therefore, the petitioners may be enlarged for bail, learned counsel for the petitioners states that even otherwise due to non-compliance of the mandatory procedure that is required to be followed under the Narcotic Drugs and Psychotropic Substances Act, 1985, the petitioners are entitled for bail. Learned counsel also states that when the petitioners moved an application earlier for grant of bail vide Criminal Petition No.6915 of 2022, this Court, without going into the merits of the case, directed the trial Court to conduct trial on day-to-day basis and complete the same within six months. Learned counsel further submits that the said order was rendered in the month of August, 2022, but till now, the trial proceedings are not completed and therefore, the petitioners may be enlarged on bail.
5. Arguing in respect of the merits of the case, learned counsel for the petitioners submits that a separate procedure is required to be followed under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, when search and seizure has to be done after sunset and before sunrise. Learned counsel states that in the case on hand, search 4 Dr CSL, J Crl.P.No.3615 of 2023 proceedings were taken up and the alleged contraband was seized at about 9.00 pm, even as per the version of the prosecution. Learned counsel further states that such being the case, the procedure contemplated under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has to be complied with and non-compliance of such mandatory procedure entitles the petitioners for getting released and therefore, they are entitled for bail. In this regard, learned counsel for the petitioners relied upon the decision of the Hon'ble Apex Court in the case between State of Rajasthan Vs. Jag Raj Singh1.
6. When the learned Deputy Solicitor General of India stated that Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is applicable and not Section 42 of the said Act, learned counsel for the petitioners states that as the contraband was not seized from any public conveyance, Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is applicable. In this regard, the learned counsel for the petitioners relied upon the decision of 1 AIR 2016 SC 3041 5 Dr CSL, J Crl.P.No.3615 of 2023 the Hon'ble Apex Court in the case between Boota Singh and Others Vs. State of Haryana2.
7. Admittedly, when the search proceedings are to be conducted and the contraband is liable to be seized from any building, conveyance or enclosed place, Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is applicable and in case, the seizure is to be conducted in any public place or in transit, Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is applicable. "Public place" as per the explanation given to Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985, includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public.
8. So far as the applicability of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is concerned, as rightly contended by the learned counsel for the petitioners, the officer who intends to conduct search is under obligation to follow a separate procedure when such search is to be conducted after sunset and before sunrise. The Officer is also under obligation to obtain a search 2 AIR 2021 SC 1913 6 Dr CSL, J Crl.P.No.3615 of 2023 warrant or authorization before conducting search. In case, such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or where there is facility for escape of any offender, he may enter and search such building, conveyance or enclosed place after taking down such information in writing and that he shall within 72 hours send a copy thereof to his immediate superior officer.
9. In the case on hand, the Deputy Solicitor General of India brought to the notice of this court the contents of the Information Report, wherein and whereby the Intelligence Officer, Narcotics Control Bureau, who received the information, has submitted the said report to the Superintendent, Narcotics Control Bureau, Hyderabad Sub- zone, for necessary orders and the Superintendent endorsed as follows:-
"Discussed with Zonal Director, Narcotics Control Bureau. Constitute a team and take necessary action as per law."
10. Thus, the said Information Report clearly goes to show that information was sent without delay to the immediate 7 Dr CSL, J Crl.P.No.3615 of 2023 superior officer i.e., Superintendent, Narcotics Control Bureau, Hyderabad Sub-zone. Therefore, this Court is of the view that the technical objection raised by learned counsel for the petitioners needs no consideration.
11. So far as the merits of the case are concerned, the submission of the learned Deputy Solicitor General of India is that petitioner No.1 is a habitual offender and eight criminal cases are pending against him, out of which in one of the cases the allegation is that he committed offence punishable under Section 302 IPC. The learned Deputy Solicitor General of India also states that so far as petitioner No.3 is concerned, four criminal cases are pending against him, out of which one of the cases is for the offence punishable under Section 302 IPC. The learned Deputy Solicitor General of India also states that 2,198 kgs of ganja, worth more than Rupees Twenty Five lakhs, was seized from the possession of the petitioners and the case is at crucial stage of trial. He also stated that the material witnesses were already examined and panch witnesses are yet to be examined and on examination of those witnesses and the Investigating 8 Dr CSL, J Crl.P.No.3615 of 2023 Officer, the trial proceedings would be concluded and judgment would be rendered by the trial Court.
12. This Court, having gone through the relevant material that is brought on record and upon hearing both sides, is of the view that the case is badly hit by Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. No grounds, more so justifiable grounds exist for enlarging the petitioners on bail. Only because the trial proceedings could not be concluded time bound, the petitioners cannot be enlarged on bail, that too, in a heinous offence like this. Therefore, this Court is of the view that this Criminal Petition lacks merits.
13. Resultantly, this Criminal Petition stands dismissed.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 21.4.2023 dr