Telangana High Court
Kallam Sahith Reddy vs The State Of Telangana on 8 April, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.357 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, 1973 by the petitioner,
who is arrayed as accused No.3, seeking to quash the
proceedings against him in SC NDPS.No.19 of 2023,
pending on the file of the learned I Additional Metropolitan
Sessions Judge, Hyderabad at Nampally registered for the
offences punishable under Section 8(C), read with
20(b)(ii)(B), 27 of the Narcotic Drugs and Psychotropic
Substances ( for short 'NDPS') Act-1985.
2. Heard Sri B.Chandrashekar Reddy, learned counsel
for the petitioner and Sri S.Ganesh, learned Assistant
Public Prosecutor for respondent - State.
3. Brief facts of the case are that on 07.04.2022 at
about 17:15 hours, the Station House Officer, Bowenpally
P.S. received credible information that some persons were
in possession and selling Narcotic Substance i.e., Hash Oil,
near Community hall, Gangaputra Sangam, Old
Bowenpally, Secunderabad. He informed the same to his
superior Officers under Section 42(2) of the NDPS Act and
obtained permission and visited the place and there they
have apprehended four persons at about 18:00 hours. On
enquiry, they disclosed their names and stated that they
are having narotic substance i.e., hash oil with them and
came to sell the same to the consumers namely Mr. Thotu
Sai Kiran and Mr. Ganganaboina Vinay Kumar and the
police officials seized cell phone, cash of Rs.6,000/-, one
Activa bike bearing No. TS-08-HS-9574, one plastic bottle
containing hash oil weighing 200 grams and five empty
small plastic tins from the possession of accused
No.2/Erva Bhavani Prasad and one plastic bottle
containing hash oil weighing 115 grams from the
possession of accused No.3/Kallam Sahith Reddy and
seized cellphone, cash of Rs.3,000/- and Activa bike and
also seized cellphone from accused No.4/Thotu Sai Kiran
and 5/Vinay Kumar. Further, Accused Nos. 2 and 3 are
confessed the commission of offence. Therefore, Bowenpally
PS have registered a case in Cr.No.162/2022 under Section
27 NDPSAA, 8c, 20(b)(ii)(B) NDPS Act and handed over the
CD file to the Additional Inspector of Police.
4. The contention of the petitioner herein is that the
Investigating Officer violated the Standing Order No.01 of
1989, dated 13.06.1989. They have neither classified the
drugs nor weighed the same and sampled on the spot of
seizure. Even they have not followed the procedure
prescribed. As such, prayed to quash the proceedings
against him. In support of his contentions, he relied on the
following judgments.
i. Nooraga vs. State of Punjab and Another 1
ii. Gaunter Edwin Kircher vs. State of Goa,
Secretariat Panaji, Goa 2
iii.Edward Khimani Kamau vs The Narcotics Control
Bureau 3
iv. Union of India vs. Bal Mukund &Ors 4
v. Ahmed Hassam Muhammed vs. The Customs 5
vi. Amani Fidel Chris vs. Narcotics Control Bureau 6
5. In all the cases, the Hon'ble Courts observed that
prosecution has to follow the procedure contemplated in
(2008) 16 SCC 417.
(1993) 3 SCC 145.
2015 SCC online Delhi 9860
2009 (12) SCC 161
2021 (SCC) online Del 486.
2020 SCC online Del.2080.
Standing Order 1 of 1989. The observations made in the
above judgments are mostly in bail petitions. Learned
counsel has placed reliance on the judgment of Hon'ble
Supreme Court in Union of India vs. Mohanlal and
another 7, wherein it is observed that the application to
Magistrate for sampling has to be moved immediately after
seizure. He also relied on the judgment of Hon'ble Bombay
High Court in Mohd. Hussain Babamiyan Ramzan. Vs.
State of Maharashtra 8 and also judgment of Hon'ble
Madhya Pradesh High Court in Krishnapal Singh vs.
State of MadyaPradesh (Now Chhattisgarh High Court) 9,
wherein it is observed that the contraband article was
seized on 14.06.1995 and it was sent to Forensic Science
Laboratory on 28.06.1995 for chemical examination and
the delay in sending to FSL was not explained and the
conviction of appellant was set aside, whereas in the case
on hand, the matter is at the trial stage, prosecution has to
explain to the Court reasons for delay if there is only delay.
Therefore, the same cannot be applicable to this case. Also,
he relied on the Judgment of Hon'ble Supreme Court in
(2016) 3 SCC 379
1993 SCC online bom 453
2012 SCC online Chh 259
Gian Singh vs. State of Punjab10, it is observed that there
was a delay of '14' days in sending the sample for chemical
examination and the appellant was acquitted at the stage
of appeal. In the present case, the matter is at trial stage, it
requires trial to elicit whether any delay why the delay
occurred and it can be condone if the reasons are justified.
He also relied on the judgment of Hon'ble Delhi High Court
Rishi Dev vs. State (Delhi Admn.)11, wherein it is
observed that there is a delay in sending the sample for
expert opinion. The time limit is 72 hours stipulated by the
Narcotics Control Bureau for a seized sample to be
deposited with the chemical examiner for testing and strict
compliance has to be insisted upon in such an event.
6. At this stage, it is pertinent to note the Judgment of
the Hon'ble Supreme Court in State of Madhya Pradesh
vs. Surendra Kori 12, wherein in paragraph No.14 it is held
as follows:
"The High Court in exercise of its powers
under Section 482 Cr.P.C. does not function as a
2006 SCC Online P&H 37
2008 SCC online Delhi 1800
(2012) 10 Supreme Court Cases 155
Court of appeal or revision. This Court has, in
several judgments, held that the inherent
jurisdiction under Section 482 Cr.P.C., though
wide, has to be used sparingly, carefully and
with caution. The High Court, under Section 482
Cr.P.C., should normally refrain from giving a
prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the
evidence has not been collected and produced
before the Court and the issues involved, whether
factual or legal, are of wide magnitude and
cannot be seen in their true perspective without
sufficient material."
7. The judgments relied by the petitioner relates to the
procedure while seizing the contraband and sending it to
chemical examination. The above judgments are delivered
after the trial. In the present case, there is seizure of
contraband from the possession of the petitioner and
legality of seizure and delay in depositing the samples
requires trial what are the reasons for delay and whether
they followed the procedure while seizing decided after
full-fledged trial. As such, it is not the stage to evaluate
discrepancies. At this stage, this Court cannot decide the
validity of the seizure.
8. In view of the above discussion as well as the law laid
down by the Hon'ble Supreme Court in State of Madhya
Pradesh (supra), this Court does not find any merit in the
criminal petition to quash the proceedings against the
petitioner and the same is liable to be dismissed.
9. Accordingly, the Criminal Petition is dismissed.
Pending miscellaneous petitions, if any, in this
Criminal Petition shall also stand closed.
_____________________
JUSTICE K. SUJANA
Date: 08.04.2024
ktm
