Research › Search › Judgment

Andhra High Court · body

2019 DIGILAW 235 (AP)

Bismillah Khan v. State of A. P.

2019-09-16

U.DURGA PRASAD RAO

body2019
ORDER : U. DURGA PRASAD RAO, J. 1. The petitioner/A1 seeks regular bail in Crime No. 10 of 2019 of Mothugudem Police Station, East Godavari District, registered for the offences under Sections 8(c) R/w. Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short, 'NDPS Act'). ' 2. The prosecution case briefly is that on 16.05.2019 on receiving credible information from S.I. of Police, Mothugudem Police Station about transportation of cannabis (ganja), the Inspector of Police, Chinturu Circle, sent requisition to SDPO, Chinturu to accord permission to conduct raid and after obtaining proceedings, secured mediators and Forest Range Officer, who is a gazetted officer, and staff and went to bamboo depot, Mothugudem Village at about 1:00 p.m., and started vehicle checking. At that time, a car bearing Registration No. MH 27 AC 2646 came from. Donkarai towards Lakkavaram Junction. On seeing police party, A1 and A2 got down and tried to sneak, but the Inspector of Police apprehended them, enquired about their identity and on their confessing about transporting ganja bags, which were placed in the back seat of the car and in the boot space, served notice on them under Section 50 of NDPS Act in the presence of mediators and the gazetted officer checked the car and found five ganja bags each weighing 30 Kgs totalling 150 Kgs and then lifted samples, seized the contraband, arrested A1 and A2 and prepared-mediator's report and thereafter registered the crime. 3. Denying the offence, bail is pleaded for mainly on the submission that A1 has been in custody since 16.05.2019 and entire investigation is completed. It is further pleaded that the procedure contemplated under. Section 42(1) of NDPS Act, has not been religiously followed in this case in as much as there is no mention in the mediator's report about the time of receipt of information to the S.I. of Police about the illegal transportation of ganja and further there is no mention about recording of the receipt of information in the General Diary Register of the Police Station and thereby the entire search and seizure are vitiated. The petitioner, in support of his contention, relied upon the decisions of the Apex Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 , Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 and State of West Bengal and others v. Babu Chakraborty 2004 (2) ALT (Crl.) 355 (SC) : (2004) 12 SCC 201 . 4. Per contra, while opposing the bail, learned Additional PP would argue that it is a case of seizure of 150 KGs of commercial quantity of ganza from the possession of A1 and A2, while they were transporting it in a car and both of them were caught red-handed and in that view rigour of Section 37 of NDPS Act would apply to consider the bail application. He further submitted that investigation is still pending and charge sheet is yet to be filed Producing the copy of GD of Mothugudem PS, learned Additional PP would submit that the mandate under Section 42(1) was scrupulously followed in this case by mentioning the particulars of the information and the action taken thereafter. He thus prayed to dismiss the bail application. 5. I gave my anxious consideration to the above respective submissions. The prosecution case is that on 16.05.2019, the Inspector of Police on information from the SI of Police Mothugudem PS about the illegal transportation of cannabis, caused GD entry and proceeded to Bamboo depot in Mothugudem village along with staff and mediators and Forest Range Officer, who is a gazetted officer, after obtaining authorization from SDPO, Chintur. There having found A1 and A2 coming in a car bearing No. MH 27 AC 2646 from Donkarai side, intercepted the same. On seeing the Police, A1 and A2 got down from the vehicle and tried to escape. The CI and staff caught them and on enquiry came to know that they were transporting ganza in the car. Then, served notice under Section 50 of NDPS Act and after ascertaining their consent to be checked through FRO, searched the vehicle and found 5 bags each containing 30 KGs of ganza totalling 150 KGs. The CI seized the contraband, arrested the accused and prepared the mediators report and then proceeded back and registered the instant crime. 6. Then, served notice under Section 50 of NDPS Act and after ascertaining their consent to be checked through FRO, searched the vehicle and found 5 bags each containing 30 KGs of ganza totalling 150 KGs. The CI seized the contraband, arrested the accused and prepared the mediators report and then proceeded back and registered the instant crime. 6. Thus, it is a case of seizure of commercial quantity of ganza from the possession of A1 and A2 and therefore Section 37 of NDPS Act would pose as an interdict for considering the bail application as there is a prima facie material to hold that the accused have committed the offence and there is no other material to presume otherwise. 7. Coming to the arguments advanced by learned counsel for the petitioner, the copy of GD file, dated 16.05.2019, of Mothugudem PS (original produced and after verification returned to Police) would show that at serial No. 9 an entry was made at 16:30 hours about receiving information about transportation of ganza and SI informing the same to CI and his obtaining permission from SDPO Chintur and proceeding to the spot with the staff and mediators and Lakkavaram Range FRO and there seizing the contraband ganza from A1 and A2 and registering the instant Crime. At Serial No. 10 it is mentioned that A1 and A2 were kept in lockup and they were entrusted to sentry. Thus, the requirement under Section 42(1) of NDPS Act regarding noting down and writing about the receiving of information in respect of commission of an offence under the NDPS Act can be said to be complied with. However, the GD entry would reveal that the entry was not made immediately after receiving the information but the said entry was made at 16:30 hours on 16.05.2019 after completion of search, seizure and arrest. In this regard, the Constitutional Bench of Apex Court in Karnail Singh v. State of Haryana (2009) 8 SCC 539 , while referring to its earlier decisions in Abdul Rashid (2000) 2 SCC 513 (supra) and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 : 2001 (6) ALT 15.1 (DN SC) on the aspect of fulfillment of requirements under Section 42 of the NDPS Act, has narrated the effect of its earlier 2 decisions as follows: "17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 8. Thus, the Apex Court after considering the earlier decisions and other decisions, held that the fulfillment of Section 42 depends upon the urgency and expediency of the facts of a given case. What is deprecated is a total non compliance but not the substantial compliance. In view of the same, the argument of learned counsel for the petitioner cannot be accepted. Consequently, the decisions relied upon by the petitioner will not help his cause. 9. The Criminal Petition is, accordingly, dismissed. 10. As a sequel, Interlocutory Applications pending if any, shall stand closed.