Telangana High Court

Pandem Sai Kumar Reddy vs The State Of Telangana on 5 November, 2024

       THE HONOURABLE SMT. JUSTICE K. SUJANA

           CRIMINAL PETITION No.8148 of 2024

ORDER:

This Criminal Petition is filed under Section 482 of the

Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') (presently,

Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023)

by the petitioner/accused No.1, to quash the proceedings

against him in SC NDPS No.108 of 2023 on the file of

Metropolitan Sessions Judge-Cum-I Additional District and

Sessions Judge, Ranga Reddy District at L.B.Nagar, for the

offences punishable under Section 8(c) read with 20(b)(ii)(B) of

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short

'NDPS Act').

2. The brief facts of the case are that on receiving credible

information about illegal transportation of dry ganja through

S.Conventiona Hall in front of Grave yard, Bairamalguda. At

about 03:15 p.m., accused No.1 tried escape from the said place

by seeing the police, as such, being suspicious LWs.3 and 4

arrested the accused No.1 and other accused involved in the

contravention of the provision of NDPS Act. Thereafter, after

taking permission in writing from the department to search and

seize the contraband in terms of the G.O.Ms.Nos.148 to 150

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Revenue (Excise-II) department and searched the accused

persons in front of LW.3 and also found two packets each in two

side pockets each packet containing about 50 grams, total 200

grams dry ganja. Hence, a case was registered vide Crime No.93

of 2022 before the Prohibition and Excise Inspector, Saroornagar

and after completion of investigation, a charge sheet was filed

vide SC NDPS No.108 of 2023 before the Metropolitan Sessions

Judge-Cum-I Additional District and Sessions Judge, Ranga

Reddy District at L.B.Nagar.

3. Heard Sri B.Rajeshwar Reddy, learned Counsel for the

Petitioner and Sri Arun Kumar Doddla, learned Additional Public

Prosecutor for respondent-State.

4. Learned counsel for the petitioner submitted that since

LW.3 acted both as Gazetted Officer and also as Investigating

Officer, is abuse of process of law laid under Section 50 of NDPS

Act. He further submitted that the contraband seized from the

petitioner is 200 grams and the said quantity is less than small

quantity. In this regard, he placed reliance on the judgments of

the Apex Court in Yusuf alias Asif v. State 1; Simarnjit Singh

2023 Law Suit (SC) 1020

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v. State of Punjab 2 and Union of India v. Mohanlal and

another 3 and prayed the court to allow the Criminal Petition by

quashing the proceedings against the petitioner/accused No.1.

5. On the other hand, learned Additional Public Prosecutor

for respondent-State opposed the submissions of the learned

counsel for the petitioner stating that there are serious

allegations against the petitioner. Therefore, he prayed the Court

to dismiss the Criminal Petition.

6. In the case of Yusu alias Asif (Supra 1), the Apex Court

at paragraph No.13 held as under:

"13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act."

7. In the case of Mohanlal and another (Supra 3), the

Apex Court at paragraph No.20 held as under:

"20. To sum up we direct as under:

2023 LawSuit (SC) 859

2016 Law Suit (SC) 70

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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.

The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and double locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No. 1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.

The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts.

Disposal of the seized drugs currently lying in the police maalkhans and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading 'disposal of drugs'."

8. In the case of State by Inspector of Police, Narcotic

Intelligence Bureau, Madurai, Tamil Nadu vs. Rajangam 4 ,

the Apex Court at paragraph Nos.10 and 11 held as under:

"10.The ratio of Megna's case has been followed by other cases. In another case in Balasundaran v. State 1999 (113)

2010 15 SCC 369

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ELT 785 (Mad), in para 16, the Madras High Court took the same view. The relevant portion reads as under:

"16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated."

11. In this view of the legal position, as crystallized in Megna Singh's case (supra), the High Court was justified in acquitting the accused. We see no infirmity in the view which has been taken by the High Court in the impugned judgment. In our considered view, no interference is called for. The appeal, being devoid of any merit, is accordingly dismissed."

9. This Court has perused the material available on record.

Admittedly, LW.3, who is a complainant, acted as Gazetted

Officer apart from filing charge sheet after investigating the case.

It is pertinent to note that the personal search of the accused

should be done before the Gazetted Officer who is not a part of

the Investigation as per the Section 50 of NDPS Act. Admittedly,

in the present case, the petitioner/accused No.1 was searched

by LW.3 who is the complainant, Investigating Officer and also

Gazetted Officer. Therefore, it is the clear violation of the Section

50 of NDPS Act. Though it is mentioned in the panchanama that

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with the consent of accused search was conducted in the

presence of LW.3, it cannot regulate the procedure contemplated

under Section 50 of NDPS Act.

10. The Apex Court in State of Delhi vs. Ram Avtar 5 at

paragraph Nos.22 and 28 held as under:

"22. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), the theory of `substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non- compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial. To secure a conviction under Section 21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act were complied with or not, would normally be a matter to be determined on the

2011(6) Supreme 134

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basis of the evidence produced by the prosecution. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the Act. As is obvious from the bare language of Ex.PW- 6/A, the accused was not made aware of his right, that he could be searched in the presence of Gazetted Officer or a Magistrate, and that he could exercise such choice. The writing does not reflect this most essential requirement of Section 50 of the Act. Thus, we have no hesitation in holding that the judgment of the High Court does not suffer from any infirmity.

28. In para 29 of the judgment itself, the Bench has held that `we have no hesitation in holding that in so far as the obligation of the authorized officer under sub- section(1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. In fact the contention raised by the appellant has, in specific terms, been rejected by the Constitution Bench in clause 7 of para 23 of the judgment. The Court clearly held that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused, though any other material recovered during that search may be relied upon by the prosecution in other proceedings, against the accused, notwithstanding the recovery of that material during an illegal search. The proposition of law having been so clearly stated, we are afraid that no argument to the contrary may be entertained. What needs to be understood is that an illegal recovery cannot take the colour of a lawful possession even on the basis of oral evidence. But if any other material which is recovered is a subject matter in some co-lateral or independent proceeding, the same could be proved in accordance with law even with the aid of such recovery. But in no event the illegal recovery can be the foundation of a successful conviction under the provisions of Section 21 of the Act."

11. In view of the above discussion and principle laid down

in the aforesaid judgments of the Apex Court, since the Gazetted

Officer is the LW.3 who filed the charge sheet after completion of

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the investigation apart from being a complainant and drawing

samples from the packets of the petitioner/accused No.1 at the

time of seizure is not conformity with the law laid down by the

Apex Court in the case Mohanlal (Supra 3), this Court is of the

considered opinion that the proceedings against the

petitioner/accused No.1 are liable to be quashed.

12. Accordingly, the Criminal Petition is allowed.

Consequently, the proceedings against the petitioner/accused