Kishan Chagan Kale, vs State Of Telanagana
2023 Latest Caselaw 1722 Tel

     HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

             CRIMINAL PETITION No.3615 of 2023

ORDER:

Heard Sri Gopala Krishna Gokhaley, learned counsel

for the petitioners, as well as Sri Karunasagar, learned

counsel, who represented the learned Deputy Solicitor

General of India, who represented the respondent-Union of

India.

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 to 3 in S.C.No.24 of 2022 that is

pending before the Court of Special Judge for trial of cases

under the Narcotic Drugs and Psychotropic Substances Act,

Ranga Reddy District at L.B.Nagar, on bail.

3. The matrix of the case, as could be perceived through

the contents of the complaint and the relevant material that

is brought on record, is that on 20.6.2021, the Intelligence

Officer, Narcotics Control Bureau, Hyderabad, received

information that four persons, who hail from Maharashtra,

are likely to traffic substantial quantity of ganja via

Hyderabad. On that, he furnished the information to the

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Superintendent, Narcotics Control Bureau, Hyderabad Sub-

zone. The Superintendent, Narcotics Control Bureau,

Hyderabad Sub-zone, instructed the Intelligence Officer to

conduct search and seize the material. Based on the

information received, immediately two persons were secured

as mediators and the search party along with the mediators

reached Pedda Amberpet Toll plaza at about 8.00 pm. At

about 9.00 pm., a truck bearing registration

No.MH 25 U 0208 was found proceeding. The said vehicle

was intercepted and stopped. Petitioner No.2 was found

driving the said vehicle, while petitioner Nos.1 and 3 were

present in the vehicle along with one juvenile in conflict with

law. Giving information about the identity particulars, all

those persons were questioned. The truck was verified and

police found some gunny bags containing broken shells of

cashew nuts and also found 90 plastic boxes containing

1,080 packets of ganja, each packet weighing 2 kgs. The

contraband was seized.

4. Making his submission that the petitioners are

languishing in jail since long time and the trial proceedings

are yet in progress and there is no possibility of the

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proceedings getting concluded within short time and

therefore, the petitioners may be enlarged for bail, learned

counsel for the petitioners states that even otherwise due to

non-compliance of the mandatory procedure that is required

to be followed under the Narcotic Drugs and Psychotropic

Substances Act, 1985, the petitioners are entitled for bail.

Learned counsel also states that when the petitioners moved

an application earlier for grant of bail vide Criminal Petition

No.6915 of 2022, this Court, without going into the merits of

the case, directed the trial Court to conduct trial on

day-to-day basis and complete the same within six months.

Learned counsel further submits that the said order was

rendered in the month of August, 2022, but till now, the trial

proceedings are not completed and therefore, the petitioners

may be enlarged on bail.

5. Arguing in respect of the merits of the case, learned

counsel for the petitioners submits that a separate procedure

is required to be followed under the provisions of the Narcotic

Drugs and Psychotropic Substances Act, 1985, when search

and seizure has to be done after sunset and before sunrise.

Learned counsel states that in the case on hand, search

Dr CSL, J Crl.P.No.3615 of 2023

proceedings were taken up and the alleged contraband was

seized at about 9.00 pm, even as per the version of the

prosecution. Learned counsel further states that such being

the case, the procedure contemplated under Section 42 of the

Narcotic Drugs and Psychotropic Substances Act, 1985, has

to be complied with and non-compliance of such mandatory

procedure entitles the petitioners for getting released and

therefore, they are entitled for bail. In this regard, learned

counsel for the petitioners relied upon the decision of the

Hon'ble Apex Court in the case between State of Rajasthan

Vs. Jag Raj Singh1.

6. When the learned Deputy Solicitor General of India

stated that Section 43 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, is applicable and not Section 42 of the

said Act, learned counsel for the petitioners states that as the

contraband was not seized from any public conveyance,

Section 42 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 is applicable. In this regard, the

learned counsel for the petitioners relied upon the decision of

AIR 2016 SC 3041

Dr CSL, J Crl.P.No.3615 of 2023

the Hon'ble Apex Court in the case between Boota Singh

and Others Vs. State of Haryana2.

7. Admittedly, when the search proceedings are to be

conducted and the contraband is liable to be seized from any

building, conveyance or enclosed place, Section 42 of the

Narcotic Drugs and Psychotropic Substances Act, 1985, is

applicable and in case, the seizure is to be conducted in any

public place or in transit, Section 43 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 is applicable. "Public

place" as per the explanation given to Section 43 of the

Narcotic Drugs and Psychotropic Substances Act, 1985,

includes any public conveyance, hotel, shop or other place

intended for use by, or accessible to, the public.

8. So far as the applicability of Section 42 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 is concerned,

as rightly contended by the learned counsel for the

petitioners, the officer who intends to conduct search is

under obligation to follow a separate procedure when such

search is to be conducted after sunset and before sunrise.

The Officer is also under obligation to obtain a search

AIR 2021 SC 1913

Dr CSL, J Crl.P.No.3615 of 2023

warrant or authorization before conducting search. In case,

such officer has reason to believe that a search warrant or

authorization cannot be obtained without affording

opportunity for the concealment of evidence or where there is

facility for escape of any offender, he may enter and search

such building, conveyance or enclosed place after taking

down such information in writing and that he shall within 72

hours send a copy thereof to his immediate superior officer.

9. In the case on hand, the Deputy Solicitor General of

India brought to the notice of this court the contents of the

Information Report, wherein and whereby the Intelligence

Officer, Narcotics Control Bureau, who received the

information, has submitted the said report to the

Superintendent, Narcotics Control Bureau, Hyderabad Sub-

zone, for necessary orders and the Superintendent endorsed

as follows:-

"Discussed with Zonal Director, Narcotics Control Bureau. Constitute a team and take necessary action as per law."

10. Thus, the said Information Report clearly goes to show

that information was sent without delay to the immediate

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superior officer i.e., Superintendent, Narcotics Control

Bureau, Hyderabad Sub-zone. Therefore, this Court is of the

view that the technical objection raised by learned counsel for

the petitioners needs no consideration.

11. So far as the merits of the case are concerned, the

submission of the learned Deputy Solicitor General of India is

that petitioner No.1 is a habitual offender and eight criminal

cases are pending against him, out of which in one of the

cases the allegation is that he committed offence punishable

under Section 302 IPC. The learned Deputy Solicitor General

of India also states that so far as petitioner No.3 is

concerned, four criminal cases are pending against him, out

of which one of the cases is for the offence punishable under

Section 302 IPC. The learned Deputy Solicitor General of

India also states that 2,198 kgs of ganja, worth more than

Rupees Twenty Five lakhs, was seized from the possession of

the petitioners and the case is at crucial stage of trial. He

also stated that the material witnesses were already

examined and panch witnesses are yet to be examined and

on examination of those witnesses and the Investigating

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Officer, the trial proceedings would be concluded and

judgment would be rendered by the trial Court.

12. This Court, having gone through the relevant material

that is brought on record and upon hearing both sides, is of

the view that the case is badly hit by Section 37 of the

Narcotic Drugs and Psychotropic Substances Act, 1985. No

grounds, more so justifiable grounds exist for enlarging the

petitioners on bail. Only because the trial proceedings could

not be concluded time bound, the petitioners cannot be

enlarged on bail, that too, in a heinous offence like this.

Therefore, this Court is of the view that this Criminal Petition

lacks merits.

13. Resultantly, this Criminal Petition stands dismissed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

21.4.2023 dr