Andhra Pradesh High Court - Amravati
Ramesh Nath vs The State Of Andhra Pradesh on 20 August, 2024
1
APHC010259952024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
TUESDAY, THE TWENTIETH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO: 4132/2024
Between:
Ramesh Nath and Others ...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused(S):
1. YASWANTH GADE
Counsel for the Respondent/complainant:
1. SANTHI CHANDRA
The Court made the following ORDER:
1. This is the 3rd Criminal Petition, under Section 437 and 439 of Cr.P.C.,
has been filed by the Petitioners/A1 and A2, seeking regular bail in
Cr.No.VIII/10/24/2023-Customs
Customs Preventive Commissionerate, Vijayawada.
2. The above crime was registered against the petitioners for the offence
punishable under Sections 8(c) read with 20(b)(ii)(c) of NDPS Act.
3. The Prosecution's case, in brief, is that the Superintendent of Customs
Preventive Commissionerate, Vijayawada got advance info
information
rmation that the
petitioners were coming to the lane adjacent to St.John's High School,
Gannavaram in a silver colour car from Visakhapatnam on 12.10.2023
afternoon. Basing on the information, the officers of Customs Preventive
Commissionerate, Vijayawada along with independent witnesses way laid and
stopped the Volkswagen Vento Car bearing registration No.AP 31 BT 9289
and questioned A1 and A2 and after that taken them into their custody at 3.00
pm on the same day. On search of the car, they found 99 bags containing
ganja totaling to 203.306 kgs. On enquiry, A1 and A2 submitted that they
purchased the same at Jaggampeta by Raju Ram Chowdary @ Raju Bhai,
who escorted them on a motorcycle and directed them to head towards
Hyderabad and by the time, the petitioners reached to Gannavaram, the
Customs officials took them into their custody. After observing all formalities,
they were remanded to judicial custody.
4. Learned counsel for the Petitioners asserts that the Petitioners have
been falsely implicated without any iota of truth for extraneous consideration.
Following the investigation, the customs officers filed a charge sheet, which
was registered as S.C.No.95 of 2024 on the file of Metropolitan Sessions
Judge-cum-Special Judge for the Trial of NDPS Cases, Vijayawada, (for short,
'Special Court') and the same is pending for trial. Previously, the Petitioners
had filed Crl.M.P.No.329 of 2024 before the Special Court seeking bail, but
this application was dismissed on 18.06.2024. The dismissal was made
without providing reasons and noted that the Petitioners, being residents of
Rajasthan, were not expected to commence the trial soon, given the
readiness of the Respondent to proceed for trial. Petitioners are ready to
furnish local sureties and comply with any conditions imposed by this Court.
Given that the Sessions case was registered in 2024 and the trial is unlikely to
commence in the near future due to a pendency of similar cases. The
Petitioners are the primary earners for their families, who are experiencing
significant financial difficulties due to their absence. Therefore, the learned
counsel requests that the bail be granted to the Petitioners.
5. The learned Special Public Prosecutor for Central Board of Indirect
Taxes and Customs, has filed a counter and an additional counter, asserting
that the Petitioners are involved in a criminal conspiracy concerning the illegal
trafficking of Ganja and have knowingly dealt in Cannabis, a Narcotic Drug
under the NDPS Act, 1985, without the necessary authorization from
Government agencies. On 12.10.2023, the Respondent seized 203.306 kgs of
Cannabis, valued at Rs.40,66,120/-. The contraband was deposited in a
godown on 13.10.2023, well within the 48-hours under Form-1 & Form-2, duly
complying with the Rule 5 of the notification. The Petitioners had previously
filed two bail applications. Crl.P.Nos.556 & 2796 of 2024, which were
dismissed on 02.04.2024 and 16.05.2024 respectively. Additionally, they filed
bail applications before the Special Court, vide Crl.M.P.Nos.1557 of 2023 and
329 of 2024, which were dismissed on 08.01.2024 and 18.06.2024
respectively. Under sections 35 and 54 of NDPS Act, the burden is on the
Accused to prove the absence of a culpable mental state. Section 37 of NDPS
Act imposes a stringent bar against granting bail. Given the commercial
quantity of the seized contraband, there are no reasonable grounds to
conclude that the Petitioners are not guilty of the offence under the NDPS Act.
The case is ready to proceed with the trial, with the charge sheet having been
filed on 25.03.2024 and the case registered as S.C.No.95 of 2024 before the
Special Court. If the Petitioners are granted bail, at this stage, it may be
difficult to ensure their presence for trial and therefore, it is prayed that the bail
application be dismissed.
6. I have heard both sides. Learned counsel on both sides reiterated their
submissions on par with the contentions presented in the petition as well as in
the report.
7. The learned counsel for the Petitioners contends that the preceding bail
application filed on behalf of the Petitioners in Crl.P.Nos.556 of 2024 was
dismissed by this Court on 02.04.2024. Subsequently, the Petitioners filed
another bail application in Crl.P.No.2796/2024, which was also dismissed by
this Court on 16.05.2024.
8. It is submitted on behalf of the Petitioners that in the previous bail
applications, the Petitioners failed to highlight the non-compliance with Section
52(A) of the NDPS Act. Now, they're requesting the Court to take this into
account and grant bail. Conversely, the Special Public Prosecutor opposed
the grant of bail, citing the large quantity of Ganja i.e., 203.306 kgs, involved in
this case.
9. The learned counsel for the Petitioners contends that the Respondent-
State has not adhered to the procedure outlined in section 52A(2) of the
NDPS Act and relied on the decision in Simaranjit Singh vs. State of
Punjab1, wherein the Hon'ble Apex Court held that:
Sub-section (3) of Sec.52-A requires that the Magistrate shall as soon as
may be allow the application. This implies that no sooner the seizure is
effected and the contraband forwarded to the officer-in-charge of the police
station or the officer empowered, the officer concerned is in law duty-
bound to approach the Magistrate for the purposes mentioned above
including grant of permission to draw representative samples in his
presence, which samples will then be enlisted and the correctness of the
list of samples so drawn certified by the Magistrate. In other words, the
process of drawing of samples has to be in the presence and under
supervision of the Magistrate and the entire exercise has to be certified by
him to be correct.
The question of drawing of samples at the time of seizure which, more
often than not, takes place in the absence of the Magistrate does not in the
above scheme of things arise. This is so especially when according to
Section 52-A(4) of the Act, samples drawn and certified by the Magistrate
in compliance with subsections (2) and (3) of Section 52-A above
constitute primary evidence for the purpose of the trial. Suffice it to say that
there is no provision in the Act that mandates taking of samples at the time
of seizure. That is perhaps why none of the States claim to be taking
samples at the time of seizure.
Hence, the act of PW-7 of drawing samples from all the packets at the
time seizure is not in conformity with the law laid down by this Court in the
case of Union of India v. Mohanlal & Anr2. This creates a serious doubt
about the prosecution's case that substance recovered was a contraband.
2023 LawSuit(SC) 859
(2016) 3 SCC 379
Hence, the case of the prosecution is not free from suspicion and the
same has not been established beyond a reasonable doubt. Accordingly,
we set aside the impugned judgments insofar as the present appellant is
concerned and quash his conviction and sentence.
The appeal is accordingly allowed.
10. In order to thoroughly evaluate the submissions from both parties, this
Court has meticulously reviewed the prior bail orders issued in Crl.P.Nos.556
of 2024 and 2709/2024. The Court has examined all arguments presented by
the Petitioners in those order, with the sole exception of the issue pertaining to
the non-compliance with Section 52(A) of the NDPS Act. Consequently, the
Court is now positioned to address and deliberate upon the contentions
regarding the alleged non-compliance with Section 52(A) of the NDPS Act.
11. Learned counsel for the Petitioners has relied on Chapter II, Rule 5 &
Chapter III, Rule 8 of Notification (G.S.R.899(E), dt.23.12.2022), which are
detailed as follows:
CHAPTER II (SEIZURE AND STORAGE OF SEIZED MATERIAL)
5. Deposit in godowns. - (1) All seized materials referred to in sub-rule
(1) of rule 3, after seizure under the Act shall be deposited by the seizing
officer in the nearest godown designated under rule 4 within forty-eight
hours from the time of seizure alongwith a forwarding memorandum in
Form-1:
Provided that the said time period may be relaxed by further twenty-four
hours after providing of reasonable justification by the officer to whom the
seized material has been forwarded under sub-section (3) of Section 52
of the Act.
(2) The officer in-charge of a godown, before giving an acknowledgement
of receipt in Form-2, shall satisfy himself that the seized materials are
properly packed, sealed and in conformity with the details mentioned in
Form-1.
(3) The officer, who had seized the material, shall hand over the
acknowledgement of receipt of seized material in Form-2, alongwith all
other documents relating to the seizure, to the Investigating Officer for
further proceedings.
CHAPTER III (SAMPLING)
8. Application to Magistrate. - After the seized material under the Act is
forwarded to the officer-in-charge of the nearest police station or to the
officer empowered under section 53 of the Act or if it is seized by such an
officer himself, he shall prepare an inventory of such material in Form-4
and apply to the Magistrate, at the earliest, under sub-section (2) of
section 52A of the Act in Form-5.
12. According to the Prosecution's case, the Petitioners were found to be in
possession of 208.306 kgs of Ganja, and the contraband was produced before
the Court on 21.10.2023. As the Respondent has not taken specific grounds in
the bail application concerning the non-compliance with Section 52A of NDPS
Act, learned Special Public Prosecutor has requested time to file an additional
counter.
13. In the additional counter, the learned Special Public Prosecutor
asserted that the contraband was seized on 12.10.2023 and was promptly
deposited in the godown on 13.10.2023, adhering to the 48-hour stipulation as
mandated by Form-1 and Form-2. To substantiate this claim, the Special
Public Prosecutor provided copies of Form-1 and Form-2, which indicate that
the seizure occurred on 12.10.2023 and that the contraband was deposited
within the requisite 48-hour period on 13.10.2023. These forms are in
compliance with Rule 5 of the relevant Notification. The evidence on record
preliminarily demonstrates that both the seized contraband and the associated
conveyance were duly deposited with the custodian at the Vijayawada
godown within the prescribed timeframe.
14. On 20.10.2023, the Superintendent of Customs (Preventive) issued a
communication to the Superintendent of Customs, Custodian/Warehouse,
Customs Commissionerate (Preventive), Vijayawada. This communication
notified that an application had been submitted to the XII Additional
Metropolitan Magistrate, Gannavaram, pursuant to Section 52A of the NDPS
Act, 1985. The application sought certification of the accuracy of the inventory
of the seized material as outlined in Form-1 (Deposit Memo), as well as the
drawing of samples and related procedures. The Magistrate admitted the
application on 21.10.2023. Consequently, the communication requested that
the seized goods listed in Form-1 dated 13.10.2023, excluding the packing
material (MC-11), be handed over to the Superintendent, Customs Officer at
07:00 AM on 21.10.2023, for presentation before the Court.
15. The learned XII Additional Metropolitan Magistrate, Gannavaram, in
Form No.4 dated 21.10.2023, having duly examined and satisfied himself with
the alignment of the inventory with the seizure documents and the associated
consignments of seized material pertinent to the case, duly certified the
accuracy of the inventory.
16. The material on record indicates that following the Section 52A
proceedings, the seized contraband was re-deposited with the custodian at
Vijayawada, as evidenced by Form-1 and Form-2 dated 21.10.2023. Due to a
lack of facilities at Vijayawada for the long-term storage of the seized
conveyance, it was subsequently deposited at Krishnapatnam Port on
23.10.2023. Copies of Form-1 and Form-2, dated 23.10.2023, have been
provided, confirming the deposit of the seized conveyance with
Krishnapatnam Port.
17. To demonstrate compliance with the provisions of Section 52A of the
NDPS Act, the Respondent-State has relied on the inventory certificate issued
by the learned XII Additional Metropolitan Magistrate, Gannavaram,
Vijayawada. This certificate, based on the application filed under Section 52A
of the NDPS Act, 1985, along with Annexure 1, Form-4, and Form-5 submitted
by the Superintendent of Customs, Customs Commissionerate (Preventive),
Vijayawada, confirms that the weight of the seized property is 203.306 kgs.
18. Form-IV shows that the Inspector of Customs, Customs
Commissionerate (Preventive) Vijayawada, applied to the learned XII
Additional Metropolitan Magistrate, under sub-section (2) section 52A of the
NDPS Act, to certify the inventory and sub-section (3) of that section requires
any Magistrate to whom an application is made to allow the application and
certify the inventory as required. Form-V shows that the Inspector of Customs,
requested to certify the correctness of the inventory; permit taking, in the
presence of Magistrate, photographs of the seized items in the inventory and
certify such photographs as true; and allow drawing of representative samples
in the presence of Magistrate and clarify the correctness of the list of samples
so drawn.
19. After examining the aforementioned documents, this Court prima facie
finds insufficient grounds to accept the Petitioners' claim that the Respondent-
State has failed to adhere to the requirements of Section 52A(2) of the NDPS
Act.
20. A coordinate bench of the Hon'ble Supreme Court in Arvind Yadav V.
Govt. of NCT of Delhi in Bail Appln.1416/2021 decided on 06th July 2021
relying upon the Judgment of the Hon'ble Supreme Court in Union of India V.
Mohanlal and Anr.,3 had rejected bail on the grounds of non-compliance with
the provisions of Section 52A of the NDPS Act. The relevant paragraph of
Arvind (supra) is set out below:
13. By this petition, the petitioner seeks bail on the ground of non-
compliance with Section 52A of the NDPS Act; however, because 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 an
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 trial. Hence this Court finds no ground to grant bail to
the petitioner on this ground.
21. As per the Prosecution's case, Petitioners/A.1 and A.2 were in the
Silver colour Volkswagen Vento Car bearing registration No.AP31 BT 9289,
one person driving the car, another person sitting beside him in the passenger
seat. The customs officials questioned whether the Accused concealed
anything in the vehicle, for which, they replied in negative. The customs
(2016) 3 SCC 379
officials thoroughly searched the vehicles and found onion bags in it and found
the Ganja of 203.306 kgs. The knowledge of the possession of contraband
can be gleaned from the facts and circumstances of the case. The standard of
conscious possession would be different in the case of a public transport
vehicle with several persons as opposed to a private vehicle with a few
persons known to one another.
22. It is prima facie established from the record that the Petitioners were
travelling in the vehicle; the quantity of contraband found in the vehicle is of
commercial quantity. In the said facts of the case, this Court prima facie finds
it difficult to accept the Petitioners' contention that they have been falsely
implicated in the case. This Court finds that at this stage of the case, all that
could be seen is, whether the statements made on behalf of the Prosecution
witnesses, if believable would result in the conviction of the Petitioners or not.
At this juncture, this Court cannot say that Petitioners/A.1 and A.2 are not
guilty of the offence, if the allegations made are established.
23. It is settled law that where a huge commercial quantity of contraband is
involved, the Accused would indulge in activities which are lethal to society.
Therefore, it would certainly be in the interest of society to keep such behind
bars during the pending investigation.
24. As more than commercial quantity is involved and the involvement of
Petitioners/A.1 and A.2 is prima facie visible and given the foregoing reasons
and principles laid down in the judgment of the Hon'ble Apex Court referred to
supra, this court finds no grounds to enlarge the Petitioners on bail, at this
stage, consequently, the petition is liable to be dismissed.
25. Needless to say, any observations made herein above are only to
decide this application. The main case will be decided on merits by the
learned trial Court without getting influenced by any such observations made
in the present order.
26. Accordingly, the Criminal Petition is dismissed.
Miscellaneous applications pending, if any, shall stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 20.08.2024
SAK
THE HON'BLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO.4132 of 2024
Date: 20.08.2024
SAK
