Bombay High Court
Amol Madan Sadafule vs The State Of Maharashtra on 12 August, 2024
2024:BHC-AUG:17803
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
30 BAIL APPLICATION NO. 1145 OF 2024
AMOL MADAN SADAFULE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Kakade Amarsinha Shankar.
APP for Respondent-State : Mr. A. S. Shinde.
...
CORAM : S. G. MEHARE, J.
DATE : 12.08.2024
PER COURT :-
1. Heard the learned counsel for the applicant and the
learned APP for the respondent-State.
2. The applicant seeks bail in Crime No.122 of 2024,
registered with Tophkhana Police Station, District Ahmednagar,
for the offences punishable under Sections 8(C) and 20(B)(ii)
(C) of the N.D.P.S. Act.
3. The prosecution has a case that the police had received
the secret information that one person is possessing Ganja for
sale. He was storing the Ganja on the first floor of his
residence. The police arranged the trap and went to the house
of the applicant. The applicant was apprised their intention to
search the house. The police find 30 k.g. of green colour ganja
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lying in the house. It was recovered. It was seized from the
spot of the incident. Then the application under Section 52-A
of the NDPS Act was moved and samples were taken before the
Magistrate.
4. Learned counsel for the applicant would submit that
Section 50 and 52-A of the Act have not been complied with.
The flowering and footing tops were not segregated from the
seeds and leaves. Therefore, recovery of the commercial
quantity is doubtful. He further argued that taking the sample
on the spot of the incident soon after the seizure is
impermissible in the law. Therefore, Section 37 would not be
applicable. Hence, he may be granted bail.
5. Learned APP has vehemently opposed the application.
He would submit that in this case, Section 52-A of the NDPS
Act has been complied with. The samples have been obtained
in presence of the Magistrate. Therefore, the applicant cannot
say that Section 52-A has been violated. He would submit that
Section 52-A deals with the disposal of the property and not
the seizure on the spot of the incident. He also argued that the
Hon'ble Supreme Court in the case of Union of India Vs.
Mohanlal and another ; 2016 (2) Crimes (SC) 25 has directed
the DDC to take the steps how to stock and destroy under the
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supervision of the Head of the concerned Department. Under
those directions, the Heads of the Department were granted
leave to apply for its disposal under Section 52-A to the
Magistrate. Relying on these directions, he has vehemently
argued that such a defect can be cured in the mean time.
Reading this paragraph, it was a guideline for the disposal of
the destruction of the stock lying with various departments.
That requires the quick disposal after the seizure by an
application to the learned Magistrate. He further relied on the
case of Mukesh Rajaram Chaudhari Vs. State of Maharashtra ;
2023 All.M.R. (Cri.)3688 and vehemently argued that taking
the samples from the spot of incident is no violation. In this
case, the seizure was before the Narcotic Drugs and
Psychotropic Substances (Seizure, Storage, Sampling and
Disposal) Rules, 2022. Therefore, the Court in paragraph
No.16 observed that there was no need to send the samples
which were drawn before the Magistrate to the Chemical
Analyser, prior to 2022 Rules. Now the rules have cleared the
controversy. It has also been observed in paragraph No.15 that
as per the new 2022 Rules, now, different procedure is laid
down. After seizure, the contraband needs to be produced
before the Magistrate and then samples are to be drawn and
then sent to the Chemical Analyser. Contention on behalf of the
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applicant is earlier lacuna was taken care in Rules. Since the
contraband was seized before implementing the Rules 2022,
the Court record the findings that compliance under Section
52-A was not violated.
6. In Union of India Vs. Mohanlal (Supra) in paragraph
No.20, the Hon'ble Supreme Court has observed that no sooner
the seizure of any Narcotic Drugs and Psychotropic and
controlled Substances and Conveyances is effected, the same
shall be forwarded to the officer in-charge of the nearest police
station or to the officer empowered under Section 53 of the
Act. The officer concerned shall then approach the Magistrate
with an application under Section 52A(ii) of the Act, which
shall be allowed by the Magistrate as soon as may be required
under Sub-Section 3 of Section 52A, as discussed by us in the
body of this judgment under the heading 'seizure and
sampling'. The sampling shall be done under the supervision of
the Magistrate as discussed in paras 13 and 14 of this order.
Thereafter, Rule 2020 have been framed. Rule 8 speaks of
application to Magistrate. This Rule is in the replica of the
observations of the Hon'ble Supreme Court in Mohanlal
(supra). Rule 9 further provides for drawing the samples in
presence of the Magistrate. Reading this Section, in no manner
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of doubt it can be said that the samples must be taken before
the Magistrate and not before it. By catena of judgments, it
has been held that taking the samples on the spot of the
incident may not vitiate the trial. But, the accused cannot be
convicted.
7. Learned APP is correct in arguing that since the ganja
has been recovered from the house, notice under Section 50 is
not received.
8. Considering the law laid down and the Rules of the
2022, the Court is of the view that it is the duty of the
Investigating Officer to seal the entire contraband recovered on
the spot with specific identification marks and he should not
draw the samples. He has to immediately forward the seized
material to the nearest Officer-In-charge of the nearest Police
Station or to the office empowered under Section 53 of the Act
and apply to the Magistrate at the earliest under Sub Section
(2) of Section 52-A of the Act in Form-5. Rule 9 is about
drawing the samples in the presence and under the supervision
of the Magistrate. It is clear that no officer seizing the material
is authorized to take the samples soon after the seizure on the
spot of the incident. That raises the doubt about its purity and
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quantity. Rule 10 also provides for the quantity to the drawn
for the sample.
9. This Court at Principal Seat Bombay in case of Shivaji
Gorakh Satpute Vs. State of Maharashtra in Bail Application
No.2865 of 2022, dated 15th September, 2023 relying on the
view of Hon'ble Supreme Court in case of Simarnjit Singh Vs.
State of Punjab in Criminal Appeal No.1443 of 2023 held that
drawing samples from all packets at the time of seizure is not
in conformity with the law. The Hon'ble Supreme Court in
Simarnjit Singh (supra) extracted the findings of the Hon'ble
Supreme Court in Union of India Vs. Mohanlal (supra) that
drawing samples from all the packets at the time of seizure is
not in conformity with the law. Reading the judicial
pronouncement on this point and Rules 2022, the Court is of
the view that the prosecution has not strictly complied with
Section 52-A of the NDPS Act. The Supreme Court has
observed that the prolonged custody infringes the fundamental
right under Article 21 of the Constitution of India and grant of
bail on the ground of undue delay in trial is not fettered by
Section 37 of the NDPS Act.
10. In view of the above, the Court is of the view that the
applicant deserves bail. Hence, the following order :
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ORDER
(i) Bail Application is allowed.
(ii) Applicant AMOL MADAN SADAFULE be released
on bail on furnishing P.B. and S.B. of Rs.50,000/-
(Rupees Fifty Thousand only) with one solvent
surety of like amount, on the following
conditions :
(a) The applicant should not tamper with the
prosecution witnesses.
(b) He should not involve in the identical crime
henceforth.
(c) He should attend the trial on each and every
date.
(S. G. MEHARE, J.)
...
vmk/-
