Telangana High Court

Shri Sayyad Ashrafa2 vs The State Of Telangana on 3 July, 2025

            THE HON'BLE SRI JUSTICE J.SREENIVAS RAO


                 + CRIMINAL PETITION No.7217 of 2025


% Dated 03.07.2025

# Shri Sayyad Ashraf S/o Shri Mohiuddin, age
  about 44 years, occ: private employee R/o
  H.No.005, Chandesh Mandir, Near Bhayandar
  Flyover, Bhayandar, Mumbai, Maharashtra
  State.
                                                            ....Petitioner
                                   VERSUS
$ The State of Telangana, Revenue Intelligence,
  Hyderabad zone unit H.No: 10-2-289/57 & 2,
  Suryawanshi    resident,   II   cross   road,
  Shantinagar, Masdab Tank, Hyderabad-500028
  (Rep. by its Public Prosecutor, High Court at
  Hyderabad.
                                                       ... Respondent

! Counsel for Petitioners              : Sri Ashwin Kumar

^ Counsel for Respondent No.1: Sri Syed Yasar Mamoon, Addl.P.P.




< GIST:

> HEAD NOTE:

? CITATIONS:
   1.   2023 LawSuit (SC) 1247
   2.    2025 LawSuit (SC) 213
   3.    2024 SCC OnLine SC 3848
                                   2




           HON'BLE SRI JUSTICE J. SREENIVAS RAO

            CRIMINAL PETITION No. 7217 of 2025

ORDER:

This Criminal Petition is filed under Section 480 and 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'BNSS') by the

petitioner, who is arrayed as accused No.2, seeking bail in S.C.NDPS

No.1794 of 2022-New (Old S.C.NDPS No.129 of 2021) on the file of the

I Additional District and Sessions Judge, Medchal-Malkajgiri District,

in connection with Crime file No.DRI/HZU/48-A/ENQ-122(INT)/2020

on the file of the directorate of Revenue Intelligence, Hyderabad Zonal

Unit, Malkajgiri District.

2. Heard Mr.Ashwin Kumar, learned counsel for the petitioner and

Mr.V.T.Kalyan, learned counsel, representing Mr. N. Avaneesh,

learned standing counsel for the respondent.

The case of the prosecution :

3. The sum and substance of the case of the Directorate of

Revenue Intelligence (DRI) is that on prior information, on 15.12.2020

at about 13.00 hours, they secured the independent witnesses and a

way laid at Sree Bekary, Temple Alwal, Secunderabad and they found

that the petitioner - accused No.2 alighted from the auto and

meanwhile, accused No.1 came to him and handed over the polythene

parcel. Then the DRI Officials intercepted and seized the polythene

parcel from the possession of the petitioner - accused No.2 and both

of them were taken to custody. Thereafter, on the disclosed statement

made by accused No.1, the officials went to M/s. Sri Anjaneya

Engineering Works, IDA, Jeedimetla, Hyderabad and there, they

found raw material used for making prohibited drugs. The officials

also found that the seized polythene cover contains Mephedrone

weighing about 3156 grams, which is commercial quantity. The

officers had conducted panchanama at M/s. Sri Anjaneya Engineering

Works, IDA, Jeedimetla, Hyderabad showing the seizure of polythene

bag done at Sree Bekary and also raw material and other equipments

used for manufacturing activity at Engineering Works at Jeedimetla.

Thereafter, the present complaint is filed.

Submissions of learned counsel for the petitioner :

4. Learned counsel for the petitioner submitted that the petitioner

did not commit the alleged offence and he was falsely implicated in

the present case as accused No.2. He further stated that the

contraband was seized in one place, whereas the search and seizure

panchanama was conducted at different place. The investigation

agency has not followed the mandatory procedure and established

standing orders. The petitioner was arrested on 11.12.2020 and since

then he is in judicial custody i.e. more than four and half years and

he is not having any criminal antecedents. Hence Section 37 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short

'NDPS Act') is not come in the way of granting bail to the petitioner.

4.1. He further submitted that at the instance of the prosecution,

the matter before the trial Court underwent several adjournments and

they have taken more than five months time from 29.02.2024 to

12.09.2024 with an intention to keep the petitioner behind the bars.

He also submitted that the prolonged incarceration of the petitioner

violates fundamental right guaranteed under Article 21 of the

Constitution of India and in such a situation, the conditional liberty

must override the statutory embargo created under Section 37(b)(ii) of

the NDPS Act. He further submitted that the petitioner is ready and

willing to abide by the conditions, which are going to be imposed by

this Court. Hence, the petitioner may be enlarged on bail.

4.2. In support of his contention, he relied upon the following

judgments;

1) Rabi Prakash vs. State of Odisha 1; and

2) Narcotic Control Bureau vs. Lakhwinder Singh 2;

Submissions of learned counsel for the respondent :

5. Per contra, learned Standing Counsel for the respondent

prosecution submitted that the petitioner has committed the grave

2023 LawSuit (SC) 1247

2025 LawSuit (SC) 213

offence and the contraband, namely 3156 grams of Mephedrone, was

seized from the possession of the petitioner and accused No.1, which

is commercial quantity. The Investigating Officer after conducting

investigation filed charge sheet and the same was numbered as

S.C.NDPS No.129 of 2021 (old) and renumbered as S.C.NDPS

No.1794 of 2022 (new) on the file of the I Additional District and

Sessions Judge, Medchal-Malkajgiri District. He further submitted

that the petitioner had earlier approached this Court and filed

Criminal Petition No.4977 of 2023 for grant of bail and the same was

dismissed by this Court on 27.06.2023 by giving cogent reasons.

Thereafter, the petitioner once again had approached this Court and

filed another Criminal Petition No.6103 of 2024 for grant of bail and

this Court was not inclined to grant bail in favour of the petitioner,

however, directed the trial Court to expedite and conclude the

adjudication at the earliest, preferably within a period of four (4)

months from the date of receipt of a copy of the order, by its order

dated 14.06.2024.

5.1. He further submitted that at the instance of the petitioner only,

the case before the trial Court underwent several adjournments,

especially the matter is coming for cross-examination of PW.2 by the

petitioner's counsel. He also submitted that the grounds raised in the

present petition and the grounds raised in earlier bail petitions i.e.

Criminal Petition No.4977 of 2023 and 6103 of 2024, are one and the

same that the respondent-agency has not followed the mandatory

procedure as prescribed under the NDPS Act, while conducting

seizure panchanama, and this Court rejected the said contention

while dismissing the bail petition in Crl.P.No.4977 of 2023 dated

27.06.2023. Hence, the petitioner is not entitled for grant of bail.

Analysis of the case :

6. Having considered the rival submissions made by the respective

parties and after perusal of the material available on record, it reveals

that the respondent agency seized the contraband of 3156 grams of

Mephedrone, from the possession of the petitioner and other accused

under cover of panchanama dated 10.12.2020, which is a commercial

quantity. As per the provisions of the NDPS Act, 2 grams is small

quantity and 50 grams is commercial quantity, whereas the

contraband seized in this case is 3156 grams, which is commercial

quantity. According to the prosecution, the value of the seized

contraband is approximately Rs.63.12 Lakhs as on the date of

seizure.

7. The record reveals that the Investigation Officer after

conducting investigation filed complaint and the same was numbered

as S.C.NDPS No.129 of 2021 (old) and subsequently it was

renumbered as S.C.NDPS No.1794 of 2022 (new) and the same is

pending on the file of the I Additional District and Sessions Judge,

Medchal-Malkajgiri District. The record further reveals that the

petitioner had approached this Court and filed Criminal Petition

No.4977 of 2023 for grant of bail and the same was dismissed on

27.06.2023, wherein the petitioner has raised very same grounds,

which urged in the present case that the respondent agency was not

followed proper procedure while conducting search and seizure of

contraband and there is a doubt over the seizure of polythene bag

from the possession of accused No.2, since the seizure panchanama

was not conducted at a place, where the actual seizure was done. The

above said contentions were rejected by this Court while dismissing

the bail petition and the said order has become final.

8. It is not in dispute that once again the petitioner had

approached this Court and filed another Criminal Petition No.6103 of

2024 for grant of bail and this Court has not inclined to grant bail in

view of gravity of offence and also rigor of contemplation under

Section 37 of the NDPS Act. However, this Court while disposing of

the said case on 14.06.2024 directed the trial Court to expedite and

conclude the adjudication at the earliest, preferably within a period of

four (4) months from the date of receipt of a copy of the order.

9. The record further reveals that before the trial Court, S.C.

N.D.P.S. 1794 of 2022 is underwent several adjournments at the

instance of the petitioner on 10.04.2024, 18.04.2024, 09.05.2024,

06.06.2024, 20.06.2024 and 27.06.2024 to engage advocate for cross-

examination of PW.2. Thereafter, at the instance of learned counsel

for the petitioner adjourned the case from 08.08.2024 to 12.09.2024.

On 12.09.2024, the trial Court has passed the order, which reads as

follows:

"A1 is not present. A2 is produced from jail. It is coming for cross-examination of PW2 by A2. Advocate for A2 is called absent. A2 requests time stating that his advocate is not well. But it is to be noted that it is coming for cross- examination of PW2 by A2 since 14.03.2024 and A2 and his advocate are taking time on one or the other ground. Most of the times, the advocate for A2 was not even present. The crime is of the year 2020 and A2 is in jail since 11.12.2020 i.e., nearly for the last four years. Hence, this Court feels it inappropriate to adjourn the matter for any longer for cross- examination of PW2 by A2. So, the cross-examination of PW2 by A2 is recorded NIL. Issue summons to LW.2. Call on 26.09.2024. Remand of A2 is extended till then."

The above said order clearly reveals that at the instance of learned

counsel for the petitioner only, the trial Court has adjourned the

matter. Hence, the contention of learned counsel for the petitioner

that the respondent prosecution with an intention to keep the

petitioner behind the bars has taken several adjournments and not

proceedings with the matter before the trial Court is not true and

correct.

10. In Rabi Prakash supra, the Hon'ble Supreme Court held at

paragraph No.4, which reads as follows:

"As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has

been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

11. In Lakhwinder Singh supra, then Hon'ble Supreme Court held

at paragraph No.6, which reads as follows:

" In the case of fixed-term sentences, if the Courts start adopting a rigid approach, in a large number of cases, till the appeal reaches the stage of the final hearing, the accused would undergo the entire sentence. This will be a violation of the rights of the accused under Article 21 of the Constitution. Moreover, it will defeat the right of appeal."

12. The judgments which are relied upon by the learned counsel for

the petitioner supra are not applicable to the facts and circumstances

of the case on the ground that huge contraband i.e. 3156 grams of

Mephedone was seized from the possession of the petitioner and other

accused, which is commercial quantity, especially before the Court

below trial has commenced and prosecution started examining the

witnesses. The record discloses that PWs.1 and 2 were already

examined. This Court while disposing of Crl.P.No.6103 of 2024 dated

14.06.2024 directed the trial Court to expedite and conclude the

adjudication within a period of four months from the date of receipt of

copy of the order.

13. At this stage, it is pertinent to note Section 37 of the

NDPS Act, which reads as under:

"37. Offences to be cognizable and non-bailable.

-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 1[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

14. In view thereof, Section 37 of the NDPS Act mandates

that offences involving commercial quantities be non-bailable,

requiring reasonable grounds to believe the accused is not

guilty and unlikely to commit further offences while on bail.

15. It is also relevant to place on record that in Narcotics

Control Bureau v. Kashif 3, Hon'ble Apex Court held in

paragraph No.39 which reads as follows:

"39. The upshot of the above discussion may be summarized as under:

(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire

2024 SCC OnLine SC 3848

evidence collected during the course of investigation, inadmissible.

The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

16. In the above said judgment the Hon'ble Apex Court overruled

the decision of the High Court on the ground that bail was granted to

the respondent therein solely basing upon non compliance with

Section 52A of the NDPS Act, which governs the disposal of seized

narcotic substances. The Court clarified that such non-compliance

does not automatically invalidate a trial or entitle the accused to bail,

emphasizing the necessity for the prosecution to establish the

integrity of evidence and the chain of custody. The ruling underscored

that procedural lapses must be evaluated within the broader context

of the case, reinforcing the principle that non-compliance with Section

52A does not, by itself, warrant bail or invalidate the trial.

17. Taking into consideration the gravity of the offence as well