Telangana High Court

Kurva Ramesh vs The State Of Telanagana on 3 February, 2023

Bench: Chillakur Sumalatha

   IN THE HIGH COURT FOR THE STATE OF TELANGANA

              Criminal Petition No.563 of 2023

Between:

Kurva Ramesh,
S/o Bheemaiah
                                                     ... Petitioner
And

The State of Telangana,
reptd by its Public
Prosecutor, High Court of Telangana,
Hyderabad.

                                                     ...Respondent

JUDGMENT PRONOUNCED ON 03.02.2023

HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

1. Whether Reporters of Local newspapers   :          Yes/No
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be

   marked to Law Reporters/Journals?       :         Yes/No

3. Whether her Lordship wishes to
     see the fair copy of the Judgment?          :     Yes/No



                        ___________________________________
                      Dr. JUSTICE CHILLAKUR SUMALATHA
                                2
                                                              Dr CSL, J
                                                   Crl.P.No.563 of 2023



          HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

                Criminal Petition No.563 of 2023

% 03.02.2023


Between:

# Kurva Ramesh,
S/o Bheemaiah

                                                   ..... Petitioner
And:
The State of Telangana,
reptd by its Public
Prosecutor, High Court of Telangana,
Hyderabad.

                                                   ....Respondent
< Gist:

> Head Note:

! Counsel for the Petitioner: Mr. M.Amarnath
^ Counsel for Respondent: Sri T.V.Ramana Rao
                           Additional Public Prosecutor

? Cases Referred:
NIL
                                   3
                                                                Dr CSL, J
                                                     Crl.P.No.563 of 2023



     HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

              CRIMINAL PETITION No.563 of 2023
ORDER:

Seeking the Court to enlarge the petitioner, who is

arrayed as accused No.1 in Crime No.735 of 2022 of

Shadnagar Police Station, Cyberabad, on bail, the present

Criminal Petition is filed under Section 439 Cr.P.C.

2. Heard Sri M.Amarnath, learned counsel for the

petitioner, as well as Sri T.V.Ramana Rao, learned Additional

Public Prosecutor who is representing the respondent-State.

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

the contents of the First Information Report, is that the

Station House Officer, Shadnagar Police Station, who

received credible information that one person is coming from

Jadcherla side by a private vehicle carrying huge quantity of

ganja and is proceeding towards Hyderabad through NH.44,

made a GD entry to that effect and proceeded to Raikal Toll

gate and apprehended the petitioner. In the presence of the

mediators, Police seized 110 kgs of ganja which was present

in four plastic bags from the Tata Hexa vehicle under a cover

of panchanama. The seized material and the petitioner were

Dr CSL, J Crl.P.No.563 of 2023

produced before the Inspector of Police, Shadnagar Police

Station immediately.

4. Making his submission, learned counsel for the

petitioner contends that as per the procedure prescribed, the

alleged seized contraband ought to have been produced

before the Magistrate concerned immediately, but there is no

material on record to show that such a thing happened.

Learned counsel submits that he filed a copy application on

29.12.2022 before the Court of Additional Judicial Magistrate

of First Class, Shadnagar, for getting a certified copy of

Inventory, but the same was returned with an endorsement

that record is not available. Learned counsel further submits

that a day earlier i.e., on 28.12.2022, he filed a copy

application before the Court of Metropolitan Sessions Judge,

Ranga Reddy District for getting certified copy of the

Inventory, but it was returned with an endorsement that the

record would be available at the lower Court. Indeed, no such

record was present at any of the Courts. Learned counsel

thereby states that as the procedure prescribed is not

followed, the petitioner is entitled for bail.

Dr CSL, J Crl.P.No.563 of 2023

5. Opposing the submissions thus made, learned

Additional Public Prosecutor contends that the procedure

prescribed under the Narcotic Drugs and Psychotropic

Substances, Act, 1985 (hereinafter referred to as "the NDPS

Act", for brevity) was well followed by the investigating

agency. Learned Additional Public Prosecutor submits that

on seizure of the contraband, the same was produced before

the Magistrate concerned along with a requisition to draw

samples, issue certificate and thereafter to send the samples

drawn to the Forensic Science Laboratory for analysis and

accordingly, the samples were drawn and they were sent to

the Forensic Science Laboratory for analysis. Learned

Additional Public Prosecutor produced relevant record to that

effect.

6. Section 52A of the NDPS Act, which was inserted by Act

2 of 1989, prescribes procedure for disposal of seized narcotic

drugs and psychotropic Substances. As per Section 52A(2) of

the NDPS Act, where the contraband was seized and was

forwarded to the officer in-charge of the nearest Police Station

or to the officer empowered under Section 53 thereof, the said

officer shall prepare an inventory of the seized material with

Dr CSL, J Crl.P.No.563 of 2023

details mentioned in the said provision regarding the

packing, the country of origin, etc., together with the relevant

details as to the identity of the said seized material and

thereafter, the said officer has to make an application to any

Magistrate. The purpose of making an application to the

Magistrate is three fold;

firstly, for certifying the genuineness of the inventory so prepared;

secondly, for taking the photographs of the seized material in the presence of Magistrate and for certifying such photographs to be true; and

lastly, for allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

As per Section 52A(3) of the NDPS Act, where an

application to that effect is made, the Magistrate shall, as

soon as may be, allow the application.

7. Section 52 of the NDPS Act deals with disposal of

persons arrested and articles seized. As per Section 52(3) of

the NDPS Act, every person arrested and articles seized

falling within the ambit of Section 41(2) or Section 42 or

Dr CSL, J Crl.P.No.563 of 2023

Section 43 or Section 44 of the NDPS Act shall be forwarded

without unnecessary delay to the officer in-charge of the

nearest Police Station or the officer empowered under Section

53 thereof.

8. In the case on hand, though the learned Additional

Public Prosecutor contends that the necessary procedure

required to be followed is indeed followed, this Court finds

that it is not so.

9. It is not in dispute that the contraband was seized on

22.11.2022. As per the endorsement found in the requisition

filed by the Inspector of Police, Shadnagar Police Station,

Cyberabad, the said requisition for collection samples was

filed before the Magistrate concerned i.e., Principal Judicial

Magistrate of First Class, Shadnagar on 30.11.2022 at about

4.00 pm. Thus, there is delay of more than one week in

placing the contraband before the learned Magistrate seeking

for drawing the representative samples. That apart, in none

of the documents i.e., the inventory, Annexure-I and the

Certificate issued by the Court of Principal Judicial

Magistrate of First Class, Shadnagar, certifying the

genuineness of the inventory, the date of issue is mentioned.

Dr CSL, J Crl.P.No.563 of 2023

Further, a perusal of Case Diary Part-I goes to show that the

Inspector of Police, Shadnagar Police Station, made a GD

entry on 24.01.2023 stating that on the said day, he filed

inventory before the Court along with the case property for

collection of samples and sending the same to the Forensic

Science Laboratory for analysis. The learned Magistrate had

addressed a letter to the Director, Forensic Science

Laboratory, Hyderabad, requesting to compare the samples of

the seized property and to give opinion. The letter bears

Dis.No.796 of 2022. However, the date on which the said

letter was dispatched is not mentioned. It is indicated that

the letter was dispatched in the month of November, 2022.

However, when the report issued by the Telangana State

Forensic Science Laboratories is gone through, this Court

finds that the letter in Dis.No.796 of 2022 was dated

15.12.2022. Thus, it is abundantly clear that when the

contraband was seized on 22.11.2022 as per the version of

the prosecution, it was not produced before the learned

Magistrate till 30.11.2022. It is also not known when the

learned Magistrate certified the correctness of the inventory

Dr CSL, J Crl.P.No.563 of 2023

prepared. However, the sample was sent for analysis after 15

days i.e., on 15.12.2022.

10. Admittedly, restriction is imposed upon the Courts for

granting bails to the persons accused of committing offences

punishable under different provisions of the NDPS Act, more

particularly, under the provisions mentioned under Section

37 of the NDPS Act. Thus, Sections 437 to 439 Cr.P.C.

cannot be straightaway applied in the rigor of Section 37 of

the NDPS Act. As per Section 37 of the NDPS Act, when an

application for grant of bail to a person accused of

committing offences falling within the ambit of Section 37 of

the NDPS Act is filed, the Court is under obligation to issue

notice to the Public Prosecutor. Also, the said provision lays

down that in case, the Public Prosecutor opposes the

application, the Court has to satisfy itself that the person

accused cannot be found guilty of committing such an

offence and there is no possibility of the said accused

committing any offence while on bail. In case, these twin

conditions are not satisfied, the person who moves an

application for grant of either pre-arrest bail or post-arrest

bail cannot be granted such a relief. Thus, the life and liberty

Dr CSL, J Crl.P.No.563 of 2023

of the individual guaranteed under Article 21 of the

Constitution of India would be kept withhold. Such being the

rigor of the legislation, there is every requirement for all the

instrumentalities of the State and also the judiciary to follow

the correct procedure prescribed under the NDPS Act for

advancement of justice.

11. However, in the case on hand, this Court finds that

when the seizure of the contraband was effected on

22.11.2022, the Inspector of Police, Shadnagar Police Station,

leisurely produced the seized contraband before the

Magistrate concerned on 30.11.2022 and it is not known

when the Court has perused the seized contraband and

certified the genuineness of the inventory. That apart, as per

the report given by the Forensic Science Laboratory, the

representative samples drawn were dispatched on

15.12.2022.

12. Having found these lacunae, it cannot be presumed as

of now that the seized material was sent to the Forensic

Science Laboratory for analysis. Therefore, this Court is of

the view that the petitioner, who is accused of the offence,

prima facie cannot be held to have committed the offence as

Dr CSL, J Crl.P.No.563 of 2023

projected by the prosecuting agency. Also, nothing is brought

on record to show that the petitioner has any other criminal

antecedents or there is possibility of the petitioner

committing further offence.

13. Having considered all these aspects, this Court is of

the view that the request of the petitioner can be honoured,

however conditionally.

14. Resultantly, this Criminal Petition is allowed with the

following conditions:-

(i) The petitioner/accused No.1 shall be enlarged on bail on his executing a personal bond for Rs.50,000/- (Rupees Fifty thousand only) with two sureties for the like sum each to the satisfaction of the Court concerned. The sureties are directed to submit their two latest passport size photographs at the time of furnishing solvency. One such photograph is ordered to be pasted in the Surety Register against the name of the surety. The other photograph shall be kept in the case record concerned.

(ii) In case, the petitioner/accused No.1 holds a passport, he is directed to surrender the same, if it is not seized by now.

Dr CSL, J Crl.P.No.563 of 2023

(iii) The petitioner/accused No.1 should not involve in any unlawful activity.

(iv) The petitioner/accused No.1 should afford all assistance for proper investigation of the case.

(v) The petitioner/accused No.1 should not cause the evidence of the offence disappear.

(vi) The petitioner/accused No.1 should not tamper with the evidence in any manner.

(vii) The petitioner/accused No.1 should not by way of inducement, threat or promise, dissuade any person who is acquainted with the facts of the case, from disclosing such facts to the Court or to the Police Officer.

(viii) The petitioner/accused No.1 should ensure his presence whenever required by the Court or Police.

(ix) The petitioner/accused No.1 shall not leave India without previous permission of the court concerned.

(x) The petitioner/accused No.1 shall file an affidavit before the court concerned disclosing the following particulars:-

Dr CSL, J Crl.P.No.563 of 2023

(1) Contact number (2) Mail address (3) Residential particulars.

In case, there is any change in the afore- mentioned details, the petitioner shall intimate the court concerned by giving a fresh affidavit duly mentioning the change. He shall continue to do so till filing of the final report.

Any deviation of the above conditions would entitle the respondent to take appropriate steps for cancellation of the bail granted.

15. While concluding the order, the learned Additional

Public Prosecutor stated that the present case is not a

solitary case, where the Magistrates are not accepting the

contraband produced within time and in the entire

State, Police are facing much difficulty for getting the

certification regarding the correctness of the inventory

prepared, for getting the photographs of the substances

taken and for certification of such photographs, for drawing

representative samples of the seized substances and

certification in that regard. Learned Additional Public

Prosecutor contends that when the procedure contemplated

Dr CSL, J Crl.P.No.563 of 2023

is not followed, the advocates who move applications for

grant of bail would highlight the lacunae so as to get the

relief claimed and equally, they would get the judgments of

acquittal after trial. But, to follow the procedure prescribed,

the investigating agency requires the help of all concerned

including the Magistrates from whom certification has to be

obtained as per Section 52A(2) of the NDPS Act.

16. As per the provision referred to by the learned

Additional Public Prosecutor, where any narcotic drugs,

psychotropic substances, controlled substances or

conveyances were seized and were forwarded to the officer

in-charge of the nearest Police Station or to the office

empowered under Section 53 of the NDPS Act, such officer is

under obligation to prepare an inventory of such seizure with

all the details regarding the description, quality, quantity,

etc., of the products seized. Thereafter, such officer is under

obligation to make an application to any Magistrate for

three-fold purpose as indicated in the said provision.

17. Section 52A(3) of the NDPS Act envisages that when

an application is made to that effect, the Magistrate shall, as

Dr CSL, J Crl.P.No.563 of 2023

soon as may be, allow the application. Further, Section

52A(4) of the NDPS Act reads as under:-

"Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub- section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

18. Thus, certification made by the Magistrates regarding

the inventory prepared, the photographs taken and the list of

samples drawn would be treated as primary evidence in

respect of such offence. Therefore, the Magistrates are under

obligation to entertain the request of the Police officer

concerned for certification without unreasonable or undue

delay.

19. But, the instance case stands as a classic example

where both the police officials and the learned Magistrate

acted in a casual manner. This may be due to pressure of

work or other allied factors. However, the mandate of law

should not be ignored. Therefore, this Court holds that there