Andhra Pradesh High Court - Amravati
Marri Itta Parameswari vs The State Of Andhra Pradesh, on 1 February, 2024
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI \ur, -
THURSDAY, THE FIRST DAY OF FEBRUARY,gr
ll^/o THOUSAND AND TWENTY FOUR tJ~~
:PRESENT:
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO: 330 OF 2024 \J¢!Jr
Between: of `
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M`:m @ ltta parameswarI, W/o Eshw¥r`@ Eshwar Reddy,Kged about 36 years,
R/o.Vijilipeta, perala, chirala MandaI, Bapatla District. `e+r
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...Petitioner/
Accused No.9 ©-
AND
The State of Andhra Pradesh, Through the station House Officer, Il-Town Police,
chl'rala, Bapatla DistrI'ct Rep. by its publI-C Prosecutor Highr5lourf ofAndhra Pradesh,
Amaravathi.
I-
ut~espondent/complainant
EiI E
petition under section 437 & 439 of Cr.P.C, praying that in the circumstances
stated in the m'emorandum of grounds filed l'n support of the criminal Petition, the
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+ High Court may be pleased to release the petitioner on bail I-n crime No.91/2023 on
the file of "-Town Police Station, chiral#apatla District jn the interest ofjusticeul-giv~'
The petition coming on for hear,'ng, upon perusing the petl'tion and the memo
of grounds filed I'n Support thereof and upon hearing the arguments of sri p
vfiTagendra Reddy, Advocate for the petitioner and of Assistant public prosecutor for
the Respondent, the court made the following
THE HONJBLE SRI JUSTICE T.MALLIKARJUNA RAO
CRIMINAL PETITION No|330 of 2024
ORDER:
This Criminal Petition under Sections 437 and 439 of Cr.P.C., has been
filed by the petitioner/A9 seeking regular bail in Crime No.91 of 2023 of
Chirala II Town Police Station, Bapatla.
2. The above said crime was reg-lstered against the petitioner herein and
others for the offence punishable under Section 20(b)(ii)(c) read with 8(c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the
NDPS ActJ).
3. Case of the prosecution, in brief, on 13.04.2023 by the side of Syfun
fields canal bridge by the side of old bypass road, near Anjaneyaswamy
Temple, Burlavaripalem Panchayat, Chirala Mandal. Al who is main source to
secure Ganja went to Paderu Santha bailu, Visakhapatnam to purchase Ganja
in huge quantirty from A10, All and A12, who are Ganja Sellers and brought
the same and kept at surrounding areas of his home situated at Chirala as AI
purchasd nearly 100Kgs of ganja and Al sold the same to A2, A3, A4, A5, A6,
A7, A8 and A9 and gained unlawfully and after selling of the same 29Kgs is
available with Al and A2 to A5 divided the purchased Ganja into small packets
and sold the same. On 13.04.2023 Al called A2 to A5 to collect Ganja and at
about 16.OO hours, Al picked up 29Kgs of Ganja to his Bolera Goods vehicle
and then A2 to A5 came there, then Al sold the same to A2 to A5 each 2Kgs
then on information CI of police rushed to the spot along with his staff and
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T.M'R.J.,
mediators and arrested Al to A5 and also seized 29Kgs of Ganja from their
possession and also Bolero Goods vehicle AP 29 TX 5205 under the cover of
mediators report.
4. Learned counsel for the petitioner contended that While drawing
samples the 'lnvestigating author'lties have not followed the procedure as
contemplated under section 52-A of NDPS Act. In support of his contention,
the learned for the petit-loner has brought to the notice, the contents of
mediators report.
5. Learned counsel for the petitioner points out that even the contents of
mediators report show the samples were not drawn before the Magistrate and
as such it is deviation to the procedure contemplated under Section 52-A of
NDPS Act.
6. On the other hand, learned Assistant Public Prosecutor opposed to
grant bail on the ground that the petitioner herein is involved in several crimes
relating to the NDPS Act.
7. Heard both sides. Perused the material on record.
8. A perusal of mediators report clearly shows that the samples are drawn
in the presence of mediators, but not in the presence of Magistrate.
9. In a decision reported in between Simarnjit Singh vs. State of
punjabJ wherein it was categorically held that:
16. Sub-section (3) of Sec.52-A requires that the
Magistrate sha// as soon as may be a//ow the
application. This impl-les that no sooner the seizure is
1 2023 Law Suit(SC) 859
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T.M.R.J.,
effected and the contraband forvarded to the officer-
in-charge of the police station or the officer
empowered, the officer concerned ®ls in law duty-bound
to approach the Magistrate for the purposes mentioned
above ®lnc/uding grant of permission to draw
representative samples in his presence, which samples
wi// then be enlisted and the correctness of the list of
samp/es so drawn certified by the Mag-lstrate. In other
words, the process of drawing of samp/es has to be in
the presence and under supervision of the Magistrate
and the entire exercise has to be certifiled by him to be
correct.
17. The question of drawing of samples at the time of
Seizure Which, more Often than not, takes P/ace in the
absence of the Magistrate does not in the above
scheme of th®lngs arise. This is so especia//y when
according to Section 52-A(4) of the Act, samples drawn
and certifiled by the Magistrate in comp/lance w®lth
stlbsections (2) and (3) of Section 52-A above
constitute Primary evidence for the Purpose Of the tria/.
Suffice it to say that there is no prov-lsion in the Act
that m?ndates taking of samp/es at the time of seizure.
That is perhaps why none of the states claim to be
taking samples at the time of seizure.
9. Hence, the act of PW-7 of drawing samp/es from a//
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 & Anf. This creates a serious
doubt about the prosecution's case that substance
recovered was a contraband.
' 10. Hence, the case of the prosecution is not free from
suspicion and the same has not been established
beyond a reasonab/e doubt. Accord-lngly, we set aside
the impugned judgments ®lnsofar as the present
appe/lant is concerned and quash his conviction and
sentence.
ll. The appea/ is accordingly allowed.''
10. By following the above principle laid down, this Court found that the
Said Principle iS clearly applicable to the facts of the case and most of the
witnesses are shown to be official witnesses and the release of the petitioner
2 (2016) 3 SCC 379
T.M.R.J.,
would not cause hampering of investigation. In view of the aforesaid facts and
Circumstances Of the Case, this Court is inclined to grant bail to the petitioner
herein/A9.
ll. Accordingly, the Criminal Petition is allowed on the following conditions:
i. The pet'ltioner herein/A9 shall be released on bail on executing a
personal bond for Rs.25,OOO/- (Rupees twenty five thousand only)
each with two (o2) sureties for a like sum each to the satisfaction
of the learned Additional Junior Gvil Judge, Chirala.
ii. After release, the petitioner shall appear before the station House
Officer concerned, twice in a week i.e. on- every wednesday and
Sunday between 10.00 a.m and 01.00 p.m., for a period of three
(03) months.
iii. The petitioner shall not directly or indirectly contact or threaten the
witnesses under any circumstances and any such attempt shall be
construed aS an attempt Of influencing the witnesses and shall not
tamper evidence and shall co-operate with the investigation.
Sd/- M. PRABAKAR RAO
ASSISTANT R STRAR
//TRUE COPY//
F( SECTION O FICER
To,
1. The Additl-onal Junior Cl'viI Judge, chirala. d
2. The Superintendent, Distrl'ct prison, ongole. trFgr I
3. The sctgtltoon sHr: upseN aOgffelnc:rr:cRh:rda!ay' lil:oYcnatpeo[Ibcep uS:a]tin I Bapatla ur
4. One
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5. Two rrf~
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to public
n' .I_I:_Pvrosecutor
f| #p_) H,-gh Court of Andhra pradesh [ouT]
6. One spare copy
CVSS
HIGH COURT
TMR,J
DATED :01/02/2024
BAIL ORDER
ALLOWED
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