Telangana High Court
Kallam Sahith Reddy vs The State Of Telangana on 8 April, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.357 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 by the petitioner, who is arrayed as accused No.3, seeking to quash the proceedings against him in SC NDPS.No.19 of 2023, pending on the file of the learned I Additional Metropolitan Sessions Judge, Hyderabad at Nampally registered for the offences punishable under Section 8(C), read with 20(b)(ii)(B), 27 of the Narcotic Drugs and Psychotropic Substances ( for short 'NDPS') Act-1985.
2. Heard Sri B.Chandrashekar Reddy, learned counsel for the petitioner and Sri S.Ganesh, learned Assistant Public Prosecutor for respondent - State.
3. Brief facts of the case are that on 07.04.2022 at about 17:15 hours, the Station House Officer, Bowenpally P.S. received credible information that some persons were in possession and selling Narcotic Substance i.e., Hash Oil, 2 near Community hall, Gangaputra Sangam, Old Bowenpally, Secunderabad. He informed the same to his superior Officers under Section 42(2) of the NDPS Act and obtained permission and visited the place and there they have apprehended four persons at about 18:00 hours. On enquiry, they disclosed their names and stated that they are having narotic substance i.e., hash oil with them and came to sell the same to the consumers namely Mr. Thotu Sai Kiran and Mr. Ganganaboina Vinay Kumar and the police officials seized cell phone, cash of Rs.6,000/-, one Activa bike bearing No. TS-08-HS-9574, one plastic bottle containing hash oil weighing 200 grams and five empty small plastic tins from the possession of accused No.2/Erva Bhavani Prasad and one plastic bottle containing hash oil weighing 115 grams from the possession of accused No.3/Kallam Sahith Reddy and seized cellphone, cash of Rs.3,000/- and Activa bike and also seized cellphone from accused No.4/Thotu Sai Kiran and 5/Vinay Kumar. Further, Accused Nos. 2 and 3 are confessed the commission of offence. Therefore, Bowenpally PS have registered a case in Cr.No.162/2022 under Section 3 27 NDPSAA, 8c, 20(b)(ii)(B) NDPS Act and handed over the CD file to the Additional Inspector of Police.
4. The contention of the petitioner herein is that the Investigating Officer violated the Standing Order No.01 of 1989, dated 13.06.1989. They have neither classified the drugs nor weighed the same and sampled on the spot of seizure. Even they have not followed the procedure prescribed. As such, prayed to quash the proceedings against him. In support of his contentions, he relied on the following judgments.
i. Nooraga vs. State of Punjab and Another 1 ii. Gaunter Edwin Kircher vs. State of Goa, Secretariat Panaji, Goa 2 iii.Edward Khimani Kamau vs The Narcotics Control Bureau 3 iv. Union of India vs. Bal Mukund &Ors 4 v. Ahmed Hassam Muhammed vs. The Customs 5 vi. Amani Fidel Chris vs. Narcotics Control Bureau 6
5. In all the cases, the Hon'ble Courts observed that prosecution has to follow the procedure contemplated in 1 (2008) 16 SCC 417.
2(1993) 3 SCC 145.
32015 SCC online Delhi 9860 4 2009 (12) SCC 161 5 2021 (SCC) online Del 486.
62020 SCC online Del.2080.
4Standing Order 1 of 1989. The observations made in the above judgments are mostly in bail petitions. Learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in Union of India vs. Mohanlal and another 7, wherein it is observed that the application to Magistrate for sampling has to be moved immediately after seizure. He also relied on the judgment of Hon'ble Bombay High Court in Mohd. Hussain Babamiyan Ramzan. Vs. State of Maharashtra 8 and also judgment of Hon'ble Madhya Pradesh High Court in Krishnapal Singh vs. State of MadyaPradesh (Now Chhattisgarh High Court) 9, wherein it is observed that the contraband article was seized on 14.06.1995 and it was sent to Forensic Science Laboratory on 28.06.1995 for chemical examination and the delay in sending to FSL was not explained and the conviction of appellant was set aside, whereas in the case on hand, the matter is at the trial stage, prosecution has to explain to the Court reasons for delay if there is only delay. Therefore, the same cannot be applicable to this case. Also, he relied on the Judgment of Hon'ble Supreme Court in 7 (2016) 3 SCC 379 8 1993 SCC online bom 453 9 2012 SCC online Chh 259 5 Gian Singh vs. State of Punjab10, it is observed that there was a delay of '14' days in sending the sample for chemical examination and the appellant was acquitted at the stage of appeal. In the present case, the matter is at trial stage, it requires trial to elicit whether any delay why the delay occurred and it can be condone if the reasons are justified. He also relied on the judgment of Hon'ble Delhi High Court Rishi Dev vs. State (Delhi Admn.)11, wherein it is observed that there is a delay in sending the sample for expert opinion. The time limit is 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the chemical examiner for testing and strict compliance has to be insisted upon in such an event.
6. At this stage, it is pertinent to note the Judgment of the Hon'ble Supreme Court in State of Madhya Pradesh vs. Surendra Kori 12, wherein in paragraph No.14 it is held as follows:
"The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a 10 2006 SCC Online P&H 37 11 2008 SCC online Delhi 1800 12 (2012) 10 Supreme Court Cases 155 6 Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."
7. The judgments relied by the petitioner relates to the procedure while seizing the contraband and sending it to chemical examination. The above judgments are delivered after the trial. In the present case, there is seizure of contraband from the possession of the petitioner and legality of seizure and delay in depositing the samples requires trial what are the reasons for delay and whether they followed the procedure while seizing decided after full-fledged trial. As such, it is not the stage to evaluate discrepancies. At this stage, this Court cannot decide the validity of the seizure.
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8. In view of the above discussion as well as the law laid down by the Hon'ble Supreme Court in State of Madhya Pradesh (supra), this Court does not find any merit in the criminal petition to quash the proceedings against the petitioner and the same is liable to be dismissed.
9. Accordingly, the Criminal Petition is dismissed.
Pending miscellaneous petitions, if any, in this Criminal Petition shall also stand closed.
_____________________ JUSTICE K. SUJANA Date: 08.04.2024 ktm