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2024 DIGILAW 477 (TS)

Esamuddin v. State of Telangana

2024-07-16

JUVVADI SRIDEVI

body2024
ORDER : (Juvvadi Sridevi, J.) : Petitioner/accused No.2 has filed this petition under Sections 437 and 439 of Cr.P.C. seeking bail in Cr.No.49 of 2024 of P.S. Tappachbutra, registered for the offences under Sections 8(c) r/w. 20(b)(ii)(C) of NDPS Act. 2. Heard Sri Mohd. Muzaferullah Khan, learned counsel for petitioner and the learned Additional Public Prosecutor appearing for the State. 3. Case of the prosecution is that on 03.02.2024, the petitioner herein and accused No.1 in the crime were found possessing 68 kgs. of ganja wrapped in 36 packs. 4. Learned counsel for petitioner submits that petitioner herein is innocent and has been falsely implicated in the case, though nothing was recovered from his possession. He further submits that the Police have seized the contraband and arrested the petitioner on 04.02.2024, but requisition before the learned Magistrate for drawing of samples was filed on 19.02.2024 i.e., with a delay of 15 days and that the date of drawing samples is also nowhere mentioned in the Inventory/Certificate. Furthermore, there is non-compliance of the procedure under Section 52-A of the NDPS Act. In support of his contention, learned counsel has relied on the judgment of the Hon’ble Supreme Court in Yusuf @ Asif v. State, 2023 0 Supreme (SC) 1041, wherein, the accused were enlarged on bail, since the sampling of alleged contraband was made in violation of the procedure contained in Section 52-A of NDPS Act, which is also contrary to the law laid down by the Hon’ble Supreme Court in Union of India v. Mohanlal, (2016) 3 SCC 379 . In view of the law laid down in these judgments, he prayed for grant of bail. 5. The learned Additional Public Prosecutor, on the other hand, opposed the application stating that sampling was done as per the procedure, and hence, the judgments relied on by the learned counsel for petitioner are not applicable to the facts of the present case and the matter has to be decided after adducing evidence before the trial Court, hence, prayed to dismiss the petition. 6. 6. Section 52-A of the Act, which is germane to the case on hand, reads as follows: 52-A. Disposal of seized narcotic drugs and psychotropic substances (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so draw. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subseciton (2) and certified by the Magistrate, as primary evidence in respect of such offence. 7. By virtue of the power conferred under Section 76 of the Act, the Central Government has promulgated the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022, which came into effect from 23.12.2022. 8. It is gainful to refer to Rules 3 and 10 of the said rules, which read thus: “Rule 3. Classification of seized material – (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately. (2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification. (3) All narcotic drugs, psychotropic substances and controlled substances found in loose form shall be packed in tamper proof bag or in container, which shall be serially numbered and weighed and the particular of drugs and the date of seizure shall also be mentioned on such bag or container: Provided that bulk quantities of ganja, poppy straw may be packed in gunny bags and sealed in such way that it cannot be tempered with: Provided further that seized concealing material such as trolley bags, backpack and other seized articles shall be sealed separately. (4) The classification, weighing, packaging and numbering referred to in this sub-rule shall be done in the presence of search witnesses (Panchas) and the person from whose possession the drugs and substances was recovered and a mention to this effect shall invariably be made in the panchanama drawn on the spot of seizure. (5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchanama. Rule 10. (5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchanama. Rule 10. Drawing the samples.- (1) One sample, in duplicate, shall be drawn from each package and container seized. (2) When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn: Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers. (3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.” 9. While interpreting Section 52-A of the Act, the Hon’ble Supreme Court in Mohanlal’s case (2 supra), observed as follows: “15. It is manifest from Section 52-A (2) (c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. 16. Sub-section (3) of Section 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 people 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 the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. 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 sub-sections (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”. 10. On a comprehensive evaluation of the above-referred provisions, rules, and their interpretations in the above referred judgments, leaves room for no doubt that it is mandatory for the Investigating Officer to prepare an inventory of the seized narcotic drugs/psychotropic substances/controlled substances with all such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, and then make an application to the Magistrate to permit him to draw the representative samples of such contraband in the presence of the Magistrate so as to certify the correctness of the inventory so prepared. If the contraband is found in packages or containers, such packages/containers shall be weighed separately and serially numbered for the purpose of identification and one sample, in duplicate, shall be drawn from each package/container seized. The word used in the above provisions is ‘shall’ and not ‘may’, which establishes that the rule is mandatory and not directory. 11. If the contraband is found in packages or containers, such packages/containers shall be weighed separately and serially numbered for the purpose of identification and one sample, in duplicate, shall be drawn from each package/container seized. The word used in the above provisions is ‘shall’ and not ‘may’, which establishes that the rule is mandatory and not directory. 11. It is to be remembered that it is after cleavage of opinion on the interpretation of the Standing Orders/Instructions on the procedure to be followed in the drawal, storage, testing and disposal of samples seized under the Act, that the Central Government has framed the above Rules, making it mandatory to draw representative samples from each seized package/container. 12. On overall conspectus of the facts, rival submissions made across the Bar, the law referred to in the afore-cited judgments and my findings rendered above, particularly regarding the infraction of the statutory provisions by the Detecting Officer, as the contraband was seized and the petitioner was arrested on 04.02.2024 but filed requisition before the learned Magistrate for drawing of samples on 19.02.2024 i.e., with a delay of 15 days, which has obviously caused prejudice to the petitioner, and on comprehending the fact that petitioner has no criminal antecedents, the rigor under Section 37 stands diluted and the petitioner is entitled to be released on bail, however, subject to the following conditions: (i) The petitioner shall be released on bail on his executing a personal bond for Rs.20,000/-with two sureties, for the like sum each to the satisfaction of the VI Additional Chief Metropolitan Magistrate, Hyderabad. (ii) The petitioner shall abide by the conditions stipulated in Section 437(3) Cr.P.C. Petition is accordingly allowed.