Gubbala Sai Kiran vs The State Of Andhra Pradesh
2024 Latest Caselaw 1043 AP

Andhra Pradesh High Court - Amravati

Gubbala Sai Kiran vs The State Of Andhra Pradesh on 8 February, 2024

           THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                  CRIMINAL PETITION No.9316 of 2023
ORDER:

1. This Criminal Petition under Sections 437 and 439 of Cr.P.C., has been

filed by the petitioner/A.1 seeking regular bail in connection with Crime No.36

of 2023 of Jaddangi Police Station, Alluri Sitharama Raju District.

2. The above said crime was registered against the petitioner/A.1 herein

and others for the offences punishable under Section 8(c) read with Section

20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short „the NDPS Act‟).

3. The prosecution‟s case, is that, on 12.10.2023, the Sub-Inspector of

Police, Jaddangi Police Station, on credible information about illegal

transportation of ganja while they are checking the vehicles near Sree

Mallikharjuna Bramarambika Swamy Temple Arch, Jaddangi Village, in the

presence of Deputy Tahsildar and mediators, caughthold the accused persons

while they are illegally transporting the Ganja by Honda Dio Motor Cycle after

kept in a plastic bag, from Gunthawada village of Chitrakonda Mandal to

Bhimavaram Village. They purchased ganja from A.2 with financial assistance

of A.4 and recorded their confession and seized 21 Kgs of ganja from their

possession in the presence of mediators. In this case, A.3 and A.4 were

absconded.

4. The learned counsel for the petitioner contends that the petitioner was

arrested on 12.10.2023 since then he is in judicial custody; the accused is

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falsely implicated in the present case though he is no way connected with this

case and there is a clear contravention of provisions of Section 52-A of NDPS

Act.

5. On the other hand, learned Assistant Public Prosecutor opposed to

grant bail on the ground that the investigation is not yet completed.

6. Heard learned counsel on both sides.

7. Perused the entire material on record.

8. To examine the investigation done by Investigation Officer regarding

the contravention of Section 52-A of NDPS Act, this Court has perused the

Remand Report, wherein, there is no whisper about the drawing of the

sample. Learned Assistant Public Prosecutor submits that an application was

moved by the Investigation Officer for drawing of the samples, but the said

application is still pending.

9. According to the prosecution‟s case, the petitioner/A.1 was arrested on

12.10.2023 when he was alleged to be found in possession of 21 kgs of ganja.

Learned Assistant Public Prosecutor submits that no order has been passed by

the learned Magistrate even as on today. Thus, it is quite clear that even after

lapse of four months time, the sample could not be drawn.

10. Learned counsel for the petitioner relied on a decision reported in

Kashif vs. Narcotics Control Bureau1, wherein the Delhi High Court

observed as follows:

2023 SCC OnLine Del 2881

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"23. The reason for strict time frame and collection of sample has been elucidated by a coordinate bench of this court in the judgment of Rishi Dev @ Onkar Singh v. State (2008 : DHC : 1513) in CRL.A. No. 757/2000 decided on 01.05.2008 wherein it was observed as under:

"8....The above passage shows that there is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event.

......

19. This Court is unable to agree with the approach adopted by the trial court, especially its observations highlighted above. The record of the case should contain entry in writing about the sample being sent for testing within the time specified by the Narcotic Control Bureau. A strict compliance of this requirement has to be insisted upon. The reason is this. The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."

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28. What is reasonable time depends on the facts and circumstances of each case. However, it cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame.

29. In the present case, the application for drawing of sample and certification of seizure memo under section 52A NDPS was filed on 22.04.2022 i.e., after 51 days from the period of last seizure on 02.03.2022.

30. A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under section 52A NDPS for drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power and possession, is immune from tampering and mischief. Furthermore, no

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reasons have been furnished by the Respondent for the delay of 51 days for moving an application under section 52A NDPS."

11. The Delhi High Court observed that a period of 51 days, by no stretch

of imagination can be called a reasonable period for filing of application under

Section 52-A of NDPS Act, for drawing the sample though the particulars are

not placed regarding on which date such application is moved, but as on

today, in pursuance of the application made by the Investigation Officer

samples were not drawn by the learned Magistrate.

12. Considering the fact that the petitioner has got permanent abode of

Visweswarayapuram Village, Malikipuram Mandal and there is no possibility of

his fleeing away from the jurisdiction of the Court. As could be seen from the

record, most of the witnesses are shown to be official witnesses and the

release of the petitioner would not cause hampering of investigation.

Moreover, the petitioner has been in judicial custody since 12.10.2023 and the

Investigating Officer has not followed the principles at the time of seizure of

the contraband, this Court is inclined to grant bail to the petitioner.

13. In the result, the criminal petition is allowed with the following

conditions:

i) The petitioner/A.1 shall be released on bail on his executing a personal bond for Rs.25,000/- (Rupees twenty five thousand only) with two (2) sureties for a like sum each to the satisfaction of the learned Additional Judicial Magistrate of First Class, Addateegala;

ii) after his release, the petitioner shall appear before the Station House Officer concerned, on every Sunday in between 10 A.M. and 1 PM for a period of two (2) months; and

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iii) that the petitioner is directed not to hamper the investigation and tamper with the prosecution witnesses and to cooperate with the investigation.

_________________________ JUSTICE T.MALLIKARJUNA RAO

Date: 08.02.2024 MS

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THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

CRIMINAL PETITION No.9316 of 2023 Dated: 08.02.2024

MS