Andhra Pradesh High Court - Amravati

These Two Criminal Petitions Are ... vs Unknown on 7 March, 2022

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

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.

(2016) SCC 379

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

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,

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.

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".

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