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2022 DIGILAW 667 (AP)

Marra Rambabu v. State of Andhra Pradesh

2022-07-20

SUBBA REDDY SATTI

body2022
JUDGMENT Subba Reddy Satti, J. - This is an application filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') to enlarge the petitioner on bail. 2. The petitioner is A4 in crime No. 56 of 2022 of Rolugunta Police Station, Visakhapatnam District, registered for the offences 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'). 3. The case of the prosecution is that on 19.03.2022 at about 7:00 hours on receipt of information about illegal transportation of ganja, HC-459, Rolugunta Police Station along with his staff and mediators proceeded to sugarcane plantation belonging to Vuta Kannababu situated at outskirts of Y.B. Patnam village and found A3 and A4. On seeing the men in uniform, they tried to escape by leaving the ganja bags. However, Police apprehended A3 and A4 and seized 50 Kgs of ganja from their possession under cover of mediators' report. Basing on the mediators' report, the present crime is registered. 4. Heard Sri Kakumanu Joji Amrutha Raju, learned counsel for the petitioner and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor (hereinafter referred to as Public Prosecutor) for the respondent-state. 5. Learned counsel for the petitioner submits that Head Constable is not competent person to seize the contraband. He also submits that prosecution failed to follow the procedure contemplated under Sections 42 and 50 of the NDPS Act. Learned counsel places reliance on Mamta vs. State of Delhi, Bail Appln. 2270/2021 and Puran Mai vs. State of Rajasthan, S.B. Criminal Misc. Bail Application No. 3634/2022 and submits that the accused therein were granted bail on the ground that seizure was not sent to higher authorities as required under Section 42(2) of the NDPS Act and Police failed to comply with the mandate of Section 50(4) of the NDPS Act. He submits that in the present case also, Police failed to comply with the provisions of NDPS Act. He further submits that petitioner's father is suffering with ill health and petitioner has to take care of his father and petitioner is languishing in jail since 19.03.2022. Hence, he prays to grant bail to the petitioner. 6. Learned Public Prosecutor submits that Head Constable is higher in rank to that of Constable and thus there is no bar under the NDPS Act. Hence, he prays to grant bail to the petitioner. 6. Learned Public Prosecutor submits that Head Constable is higher in rank to that of Constable and thus there is no bar under the NDPS Act. He submits that whether the accused has been afforded the right contemplated under Section 50(1) and whether the authorized officer has violated the mandatory requirements are questions of fact which have to be proved during trial. In support of his version, he placed reliance on Chinta Devi & Ors. v. The State, He submits that investigation is pending. Hence, he prays to dismiss the bail petition. 7. I have given my anxious consideration and perused the record. 8. As per the mediators' report, petitioner along with A1 and A3 purchased 50 Kgs of ganja from A2 by paying Rs. 1,00,000/- and they intended to sell the same at Chennai for higher price. While A3 and A4 were waiting for vehicle, raid party came there, apprehended A3 and A4 and seized contraband from their possession. Further the search was conducted in the presence of VROs Rolugunta and Kothalam villages and samples were taken to send the same to laboratory. 9. It is appropriate to have a look at Section 42 of the NDPS Act which deals with power of entry, search, seizure and arrest without warrant or authorization. Section 42 reads thus: '42. Further the search was conducted in the presence of VROs Rolugunta and Kothalam villages and samples were taken to send the same to laboratory. 9. It is appropriate to have a look at Section 42 of the NDPS Act which deals with power of entry, search, seizure and arrest without warrant or authorization. Section 42 reads thus: '42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 10. A perusal of Section 42 indicates that an officer superior in rank to peon, sepoy or constable can conduct search, seizure or arrest any person if he has a reason to believe that an offence under the NDPS Act was committed by said person. In the present case alleged search was conducted by Head Constable, who is superior to Constable. Therefore, as per Section 42 of the NDPS Act he is authorized to conduct search, to detain and arrest any person whom he has reason to believe that he has committed offence punishable under the NDPS Act. 11. Section 50 of the NDPS Act reads thus: '50. Conditions under which search of persons shall be conducted.-- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior'. 12. A perusal of mediators' report indicates that HC 459 of Rolugunta Police Station got information with regard to illegal transportation of ganja and the same was mentioned in general diary of the Police Station. It further mentions that the said Head Constable in turn requested Tahsildar to send mediators and as per consent Tahsildar sent mediators to the Police Station. Thereafter HC 459 and HC 127 along with other staff and mediators went to the scene of occurrence and on seeing men in uniform, two persons tried to escape leaving gunny bags. However, Police apprehended them along with gunny bags. Thus, the contention of learned counsel for the petitioner that Police officials failed to follow the procedure contemplated under Sections 42 and 50 falls to ground. 13. The other contention of learned counsel for the petitioner is that nothing was recovered from possession of A3 and A4. In this regard, on seeing the Police, the accused tried to run away leaving gunny bags, but they were apprehended. Therefore, nothing was recovered from their body. 14. The contention of learned Public Prosecutor is that accused cannot be granted bail on the ground that Section 50 or any other provision of the NDPS Act has not been complied with and during trial, prosecution would be given an opportunity to prove that search was conducted in accordance with law. Even, if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to gone into. 15. In Himachal Pradesh v. Pirthi Chand 1996 (2) SCC 37 , the Hon'ble Apex Court held as under: 'It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.' .... In spite of illegal search property seized, on the basis of said search, still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.' .... It would thus be settled law that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon. .... .... Though the search may be illegal but the evidence collected, i.e. panchanama etc. nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even, if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into'. 16. From the above discussion it is clear that if any deviation in following the procedure of search will be considered during the course of trial but not at the stage of considering bail petition. Further, though the petitioner is in jail since 19.03.2022, the contraband seized from conscious possession of the petitioner as well as another accused is 50 Kgs, which is commercial quantity. Therefore, bar under Section 37 of the NDPS Act attracts to the present case. 17. In view of the above discussion and as the contraband seized is 50 Kgs, which is commercial quantity, this Court is not inclined to grant bail to the petitioner and this petition is liable to be dismissed. 18. Accordingly this criminal petition is dismissed. Therefore, bar under Section 37 of the NDPS Act attracts to the present case. 17. In view of the above discussion and as the contraband seized is 50 Kgs, which is commercial quantity, this Court is not inclined to grant bail to the petitioner and this petition is liable to be dismissed. 18. Accordingly this criminal petition is dismissed. Consequently, miscellaneous applications pending, if any, shall stand closed.