Rabhi Khilo, And Others vs State Of Andhra Pradesh

T Mallikarjuna Rao, J

This Criminal Petition under Sections 437 and 439 of Cr.P.C., has been filed by the petitioners/A1, A3 and A4 seeking regular bail in Crime No.62 of 2024 of IV Town Police Station, registered for the offence punishable under Section 20(b)(ii)(C), 25 read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’).

Brief facts of the case are that, on 17.03.2024, on receipt of credible information about illegal transportation of ganja, the Sub-Inspector of police along with his staff and mediators rushed to auto parking area, near sulabh complex, Railway Station, Visakapatnam and found the accused in possession of 4 Kgs of ganja and 1 Kg of weed oil. The contraband along with other material was seized under the cover of mediators report.

Learned counsel for the petitioners 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 petitioners has brought to the notice, the contents of mediators report.

Learned counsel for the petitioners 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 petitioners have been in judicial custody since 17.03.2024.

Learned counsel for the petitioners further submits that the total quantity of contraband said to be seized from the petitioners is 4Kgs of ganja and 1 Kg of weed oil and it does not come under the definition of commercial quantity.

On the other hand, learned Assistant Public Prosecutor opposed the grant of bail to the petitioners herein.

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. It is submitted that the petitioners had permanent abode and there is no possibility of their fleeing away from the justice and most of the witnesses are official witnesses the release of the petitioners 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 petitioners herein.

Accordingly, the Criminal Petition is allowed on the following conditions:

i. The petitioners herein shall be released on bail on executing a personal bond for Rs.20,000/- (Rupees twenty thousand only) each with two (02) sureties for a like sum each to the satisfaction of the learned I Additional Chief Metropolitan Magistrate, Visakhapatnam.

ii. After release, the petitioners shall appear before the Station House Officer concerned, once in a fortnight, for a period of three (3) months.

iii. The petitioners 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.