Karri Darababu vs State Of Andhra Pradesh

Dr Y. Lakshmana Rao, J

The Criminal Petition has been filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’), seeking to enlarge the Petitioner/Accused No.2 on bail in Crime No.21 of 2025 of Pedabayalu Police Station, Alluri Sitharama Raju District, was registered against the Petitioner/Accused No.2 herein for the offences punishable under Section 20(b)(ii)(C) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the NDPS Act’).

Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor. Perused the record.

Learned counsel for the petitioner submitted that even according to mediators report, the investigating officer has not followed the procedure contemplated under Section 52-A(3) of NDPS Act.

The allegation against the petitioner/accused No.2 is that he was transportation of 75 kgs ganja. It is a commercial quantity. The mediators report shows that the contraband weighing about 75 kgs was said to be seized from the possession of petitioner. The report further shows that in the presence of mediators they collected the sample. It shows that they did not approach the Magistrate while taking samples from the contraband. Learned counsel for the petitioner relied on a decision reported in between Simaranjit Singh vs. State of Punjab 2023 LawSuit(SC) 859 wherein it is 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. He was arrested on 25.04.2025. He has been in the judicial custody for the past 172 days. The learned Assistant Public Prosecutor submits that the petitioner has got one similar adverse antecedent vide Crime Nos.59 of 2023. In Prabhakar Tiwari v. State of U.P. and others 2020 (11) SCC 648, the Hon’ble Apex Court has categorically held that criminal antecedents should not be taken into consideration while considering an application for grant of bail. Thus the substantial portion of the investigation in so far the involvement of the petitioner is concerned is completed. The petitioner is a lorry driver. The petitioner is permanent resident of Kodasantha Village, Koyyuru Mandal, Alluriseetharama Raju District. He has got fixed abode. So far, five witnesses are examined. All the examined witnesses are official witnesses. Therefore, the possibility of the petitioner threatening the witnesses, hampering the investigation, or tampering with evidence does not arise.

Considering the facts and circumstances of the case, the nature and gravity of allegations levelled against the Petitioner/Accused No.2, this Court is inclined to enlarge the Petitioner/Accused No.2 on bail.

In the result, the Criminal Petition is allowed with the following stringent conditions:

i. The petitioner/Accused No.2 shall be enlarged on bail subject to he executing a bond for a sum of Rs.20,000/- (Rupees twenty thousand only), with two sureties each for the like sum each to the satisfaction of the learned I Additional District & Sessions Judge-cum-Special Judge for Trial of Offences under NDPS Act, Visakhapatnam.

ii. The petitioner/Accused No.2 shall appear before the Station House Officer concerned, on every Saturday in between 10:00 am and 05:00 pm, till cognizance is taken by the learned the Trial Court.

iii. The petitioner/Accused No.2 shall not leave the limits of the State of Andhra Pradesh without prior permission from the Station House Officer concerned.

iv. The petitioner/Accused No.2 shall not commit or indulge in commission of any offence in future.

v. The petitioner/Accused No.2 shall cooperate with the investigating officer in further investigation of the case and shall make himself available for interrogation by the investigating officer as and when required.

vi. The petitioner/Accused No.2 shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer.

vii. The petitioner/Accused No.2 shall surrender his passport, if any, to the investigating officer. If he claim that he do not have a passport, he shall submit an affidavit to that effect to the Investigating Officer.