Ravi Dhansingh Chuhan vs The State Of Telangana
2022 Latest Caselaw 6493 Tel

     HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

            CRIMINAL PETITION No.10061 of 2022

ORDER:

Heard Sri V.S.R.M.V.Prasad Sanaka, learned counsel

for the petitioners, as well as learned Additional Public

Prosecutor who is representing the respondent.

2. This Criminal Petition is filed under Section 439

Cr.P.C., seeking the Court to enlarge the petitioners, who are

arrayed as accused Nos.1 and 2 in Crime No.278 of 2022 of

Shamirpet Police Station, Cyberabad, on bail.

3. Making his submission, learned counsel for the

petitioners contends that the petitioners were arrested on

01.8.2022 and since then, they are in judicial custody.

Learned counsel states that as per the version of the

prosecution, 350 kgs of ganja was seized from the possession

of the petitioners and other accused and the same was

contained in 175 packets, but the procedure followed while

drawing samples is not complied with and thus, on that sole

ground, the petitioners are entitled for bail.

4. Learned counsel for the petitioners further contends

that the Police concerned ought to have drawn samples from

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and out of 175 packets, but Police have drawn 15 samples

only and it is not known from which of the packets out of 175

packets, samples were drawn and therefore, as the procedure

contemplated under the Board Standing Orders is not

complied with, the petitioners are entitled for bail.

5. Learned counsel for the petitioners in this regard relied

upon the decision of the Hon'ble Apex Court in the case

between Noor Aga Vs. State of Punjab and another1

wherein their Lordships at para 91 of the judgment held as

follows:

"91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

6. On the other hand, learned Additional Public

Prosecutor made his submission relying upon the decision of

(2008)16 SCC 417

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the Hon'ble Apex Court in the case between Union of India

Vs. Mohanlal and another2, wherein their Lordships at

paras 13 and 14 of the judgment held as follows:

"13. It is manifest from Section 52-A(2)(c) of the Narcotic Drugs And Psychotropic Substances Act, 1985 that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 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

(2016) 3 SCC 379

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certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the 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 sub-sections (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. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to

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re-examine the matter and take suitable steps in the above direction.

14. Mr. Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on

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receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."

7. Basing his submission upon the afore-mentioned

judgment, learned Additional Public Prosecutor contends that

the Police concerned have followed the due procedure and on

seizure, they placed the entire material before the Magistrate

concerned and the Magistrate concerned certified that the

seizure and the inventory prepared are as required under

Section 52(3)(A) of the Narcotic Drugs And Psychotropic

Substances Act, 1985, and thus, the ground urged is

unjustifiable.

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8. A perusal of the Case Diary reveals that each packet

was numbered and thereafter, the entire material was

transferred into High Density Polyethylene woven sacks and

subsequently, samples were drawn. Therefore, this Court is

of the view that there is no irregularity whatsoever in the

procedure applied.

9. In Standing Order No.1 of 1989, dated 13.6.1989, at

Point No.2.3, there is a clear mention that the seized

products shall be well mixed to make it homogeneous and

representative before the sample is drawn.

10. Thus, this Court considers that the irregularly pointed

out by the learned counsel for the petitioners is

unsustainable and that on the said ground, petitioners

cannot be enlarged on bail. Further more, the contraband

seized i.e., ganja exceeds the limit and falls within the ambit

of commercial quantity. Therefore, the twin conditions as

required to be taken note of under Section 37 of the Narcotic

Drugs and Psychotropic Substances Act, 1985, have to be

seen apart from the conditions required under Section 439

Cr.P.C.

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11. Having considered the mandate of law laid down while

dealing with the petitioners, where the allegation is that they

have procured and were transporting the material which falls

within the ambit of narcotic drugs and psychotropic

substances, this Court is of the view that the request of the

petitioners for grant of bail cannot be honoured.

12. Resultantly, this Criminal Petition is dismissed.

13. As a sequel, miscellaneous petitions pending, if any,

shall stand closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

06.12.2022 dr