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Judgment
T Mallikarjuna Rao, J
The Court made the following:
This Criminal Petition under Sections 437 and 439 of Cr.P.C., has been filed by the petitioner/A2 seeking regular bail in Crime No.378 of 2023 of Anakapalli Town Police Station, Anakapalli District.
The above said crime was registered against the petitioner herein and others for the offence punishable under Section 20(b)(ii)(C) read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act).
Case of the prosecution, in brief, is that on 10.10.2023 the Inspector of Anakapalli Town Police Station received information about illegal transportation of ganja, secured the presence of mediators and rushed to Goods Shed Road and started conducting vehicle checking. He found four persons proceedings towards Railway Station while coming from Lakshmidevi Peta by walk and by looking at police, they tried to abscond. Then the Inspector of police with the assistance of his staff apprehended them and during the course of interrogation, A1 to A4 disclosed their address particulars and based on their confessional statements, 24Kgs of ganja was seized from the possession of A1 to A4 in the presence of mediators under the cover of mediators report.
Learned counsel for the petitioner contended that while drawing samples the investigating authorities have not followed the procedure as contemplated under Section 52-A of NDPS Act. In support of his contention, the learned for the petitioner has brought to the notice, the contents of mediators report.
Learned counsel for the petitioner points out that even the contents of mediators report show the samples were not drawn before the Magistrate and as such it is deviation to the procedure contemplated under Section 52-A of NDPS Act. Moreover, the petitioner has been in judicial custody since 10.10.2023.
On the other hand, learned Assistant Public Prosecutor submits that investigation is still pending. Contraband allegedly seized from the possession of petitioner is commercial quantity. He further submits that the petitioner herein has no previous crime record.
Heard both sides. Perused the material on record.
A perusal of mediators report clearly shows that the samples are drawn in the presence of mediators, but not in the presence of Magistrate.
In a decision reported in between Simarnjit Singh vs. State of Punjab 2023 Law Suit(SC) 859 wherein it was categorically held that:
Sub-section (3) of Sec.52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Union of India v. Mohanlal & Anr (2016) 3 SCC 379. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.
The appeal is accordingly allowed.
By following the above principle laid down, this Court found that the said principle is clearly applicable to the facts of the case. Moreover, the petitioner is in judicial custody for more than four months and most of the witnesses are shown to be official witnesses and the release of the petitioner would not cause hampering of investigation or threatening of witnesses. In view of the aforesaid facts and circumstances of the case, this Court is inclined to grant bail to the petitioner herein/A2.
Accordingly, the Criminal Petition is allowed on the following conditions:
i. The petitioner herein/A2 shall be released on bail on executing a personal bond for Rs.25,000/- (Rupees twenty five thousand only) each with two (02) sureties for a like sum each to the satisfaction of the learned Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge-Special Judge for Trial of Offences under NDPS Act, Visakhapatnam.
ii. After release, the petitioner shall appear before the Station House Officer concerned, once in a week i.e. on every Sunday between 10.00 a.m and 01.00 p.m., for a period of three (03) months.
iii. The petitioner shall not directly or indirectly contact or threaten the witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper evidence and shall co-operate with the investigation.