Bombay High Court
Suresh Hetram vs The State Of Maharashtra on 3 February, 2022
Author: C.V. Bhadang
Bench: C.V. Bhadang
5 ba 4430-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 4430 OF 2021
Suresh Hetram ..Applicant
V/s.
The State of Maharashtra ..Respondent
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SNEHA Mr. Ayaz Khan for the Applicant.
NITIN
CHAVAN Mr. A.R. Kapadnis, APP for the Respondent/State.
Digitally signed by
SNEHA NITIN
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CHAVAN
Date: 2022.02.03 CORAM : C.V. BHADANG, J.
19:05:22 +0530
DATE : 3 FEBRUARY 2022
(Through Video Conferencing)
P.C.
1. By this application, the Applicant is seeking release of bail
in Crime No. 453 of 2021 of Police Station Vadgaon, District-
Kolhapur, under Section 8 (c), 20 (b)(ii) (A) and 17(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985('the Act'
for short).
2. The prosecution case is that on 05.08.2021 at about 12.45
hours, a raid was conducted, prior information, at Hotel
Samrathal, Ambakwadi Phata on the Pune-Banglore Road
Highway in the following contraband articles were recovered
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5 ba 4430-21.doc
(i) 650 grams of greenish leafy substance partially moist
suspected to be Ganja.
(ii) 6 kgs and 320 grams of opium gondas.
(iii) 3 kgs 725 grams of opium gondas in powder form.
The said hotel was being run by the present Applicant.
It appears that 25 grams of samples were separated from each of
the substances, which have been marked as Exh. B1, B2 and B3,
while the remaining quantity was sealed and marked as Exh. A1,
A2 and A3. Subsequently, the Investigating Officer in
compliance of Section 52A(3) of the Act had produced the
samples and remaining quantity recovered before the learned
Judicial Magistrate First Class at Peth, Vadgaon. There is a
certification of inventory made by the learned Magistrate on
06.08.2021, which shows that sample B1, B2 and B3 measured
respectively 0.030 grams, 0.028 grams and 0.031 grams. Insofar
as the actual contents are concerned (excluding wrappers), the
samples were found to be containing 0.27 grams (B1), 0.28
grams (B2) and 0.030 grams (B3). They were accordingly
resealed with the seal of the Magistrate. Then there is a
forwarding letter dated 11.08.2021 by which the samples are
shown to be sent to the Chemical Analyst at Kolhapur.
3. In this case, the report of the Chemical Analyst is awaited.
However, on account of the completion of the rest of the
investigation, a chargesheet is already filed.
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4. I have heard the learned counsel for the Applicant and the
learned APP.
5. It is submitted that by the learned counsel for the Applicant
that the quantity of the samples do not match with the quantity
of the contraband found by the learned Magistrate in the
certification under Section 52A(3) of the Act. Secondly, it is
submitted that the forwarding letter does not show that the
samples with the seal of the Magistrate have been sent, inasmuch
as, the forwarding letter bears the seal of the concerned Police
Inspector. Thirdly, it is submitted that the learned Special Judge
was in error in holding that the quantity of 'poppy straw'
recovered is a commercial quantity. He submitted that insofar as
Ganja is concerned, the commercial quantity is in excess of 1 kg
while in respect of ;poppy straw' as defined in Section 2(xviii), it
is 50 kgs (item No. 110 of the Table to the notification under the
said Act).
6. It is submitted by the learned counsel for the Applicant that
the substance found cannot be said to be opium within the
meaning of Section 2(xv) inasmuch as "opium" means the
coagulated juice of the opium poppy and any mixture, with or
without any neutral material, of the coagulated juice of the opium
poppy. Thus, in short, it is submitted that neither Ganja nor
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'poppy straw' which is allegedly recovered is of the commercial
quantity.
7. Reliance is placed on behalf of the Applicant, on the
decision of the Supreme Court in Union of India v/s. Mohanlal
and others1 in order to submit that statutory scheme of the Act
envisages production of the seized articles and obtaining of the
samples in the presence of the Magistrate, which is not done.
8. The learned APP has submitted that the CA report is not
yet received and this Court may await the CA report after which
the application can be considered.
9. I have considered the submissions made. Prima facie it
appears that the Raiding Officer has obtained samples of 25
grams each, which were designated as B1, B2 and B3. However,
when the said samples were opened before the learned Magistrate
they were found to be of lessor quantity namely 0.027 grams,
0.028 grams and 0.030 grams respectively. There is also an issue
whether the samples having the seal of the Magistrate were sent
to the Chemical Analyst. At least prima facie, it appears from the
forwarding letter dated 11.08.2021 that samples bearing the seal
of concerned Police Inspector and not the learned Magistrate.
Thus, prima facie, there is a doubt about identity of the samples
which were sent are drawn and sent for the report of the
1 2016(1)MLJ (Criminal) 486
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Chemical Analyst. In such circumstances, I do not find that it is
necessary to wait for report of the Chemical Analyst in this case.
10. In the result, the following order is passed:
ORDER
i) The Applicant be released on bail on executing a PR Bond in the sum of Rs.25,000/- with one or two solvent sureties in the like amount.
ii) The Applicant shall undertake to remain present before the learned Special Judge, during the course of the trial.
iii) The Applicant shall not tamper with the prosecution evidence/witnesses.
iv) In the event of breach of any of the conditions, the bail is liable to be cancelled.
v) Bail bonds to be furnished before the learned Special Judge.
vi) The observations herein are of a prima facie nature, and the learned Special Judge shall not be influenced by the same at the trial.
11. The Criminal Application is disposed of in the aforesaid terms.
(C.V. BHADANG, J.)
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