Telangana High Court
Kadavath Soni Bai vs The State Of Telangana on 14 July, 2023
Author: M.Laxman
Bench: M. Laxman
THE HONOURABLE SRI JUSTICE M. LAXMAN
CRIMINAL PETITION No.5511 OF 2023
ORDER:
1. This petition is filed under Sections 437 and 439 of Criminal Procedure Code, 1973 (Cr.P.C) seeking to grant regular bail to the petitioner, who is arrayed as accused No.1 in Crime Occurrence Report No.20 of 2023 of Narayankhed Police Station, Sangareddy District. The offences alleged against the petitioner are under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act).
2. The sum and substance of the case of the prosecution is that on information, the police went to the premises where ganja was found. Accused Nos.1 and 2 were sitting outside the said premises and on enquiry, accused No.1 said that house belongs to her and it was locked. They broke the lock and entered into the house. On search, they found 50 Kgs., of ganja in the said premises. On questioning, both the accused stated that their sons have brought the said ganja and asked them to sell the same and that while they were waiting for customers, the raid was conducted. 2
3. The contention of learned counsel for the petitioner- accused No.1 is that in effecting the seizure and in drawing samples, the procedure as contained under the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (for short, the Rules) which are notified on 23.12.2022 was not followed. According to him, the packages, which are recovered, must be weighed and sealed individually and samples were also required to be drawn by production of such sealed parcels before the concerned Magistrate, but this procedure has not been followed.
4. It is further contended that the samples are required to be drawn before the concerned Magistrate only, but not at the scene where the seizure was effected. It is further contended that the seized contraband was not produced before the Magistrate within reasonable time and therefore, all these lapses must go to the benefit of the petitioner- accused No.1.
5. It is also contended that when five (05) parcels were seized and when it comes to the production before the Magistrate, consolidatedly one bag was produced containing 50 Kgs. together. Therefore, according to him, these actions 3 amount to infraction of the procedure mandated under the Rules notified on 23.12.2022. Therefore, all these must go to the benefit to establish the reasonable grounds exist to believe that the petitioner is not guilty of the offence.
6. The contention of learned Additional Public Prosecutor is that panchanama was conducted at the scene of offence, and after seizure, the total ganja found in five loose bags was mixed and two samples were drawn from the same in the presence of mediators. Such procedure is followed in terms of previous Standing Orders issued under the Act. Subsequently, the Rules were brought in whereunder samples were directed to be drawn before the concerned Magistrate in terms of Section 52-A of the Act. According to him, having realised the mistake in drawing the samples, the authorities have drawn fresh samples before the concerned Magistrate from the homogeneous gajna and one os such samples after certification, was sent to Laboratory. He has also contended that the Rules themselves enable the authorities to make the seized contraband into lots for convenience by bunching together, if they are identical in all respects. In the present case, since the five loose bags of ganja were found to be similar, for convenience, the 4 authorities bunched the same together in a single package, and thereafter, it was produced before the Magistrate concerned. According to him, there is no procedural violation in the present case. He has further contended that the Rules as well as Section 52-A of the Act mandate that the seized contraband shall be produced before the concerned Magistrate within reasonable time, but what is reasonable time cannot be put in a straight jacket formula and it all depends upon the facts and circumstances of each case.
7. In the background of the above contentions, it is apt to refer to Rules 2 (1) (b) and (e), 3 and 8 to 10 which read as follows:
"2. Definitions:- (1) In these rules, unless the context otherwise requires, -
(a) xxx
(b) "container" means a portable receptacle in which narcotic drugs, psychotropic substances and controlled substances are placed for convenience of movement;
(c) and (d) xxx
(e) "package" means the narcotic drugs, psychotropic substances and controlled substances covered in paper or in a box.
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.
5(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 panchnama 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 panchnama.
8. Application to Magistrate:- After the seized material under the Act is forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5.
9. Samples to be drawn in the presence of Magistrate:-
After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub- section.
10. Drawing the samples:- (1) One sample, in duplicate, shall be drawn from each package and container seized. 6
(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."
8. A reading of the definition of 'container', it refers to portable receptacle in which prohibited contraband is placed for convenience of movement. The word 'package' refers to coverage of contraband with paper or in a box.
9. Rule 3(2) of the Rules says that if the contraband are found in packages or containers, the packages and containers shall be weighed separately and serially numbered for the purpose of identification. Rule 3(3) deals with the situation if the contraband found in loose form.
10. Admittedly, in the present case, the contraband was found in loose form, but not in package or container. When the contraband of ganja was found in bulk quantity in loose 7 form, it can be filled in gunny bags and sealed in such way that it cannot be tampered with.
11. Rule 3(4) of the Rules deals with weighing, packaging and numbering the contraband in the presence of search witnesses under panchanama and the panchanama shall be drawn on the spot of seizure.
12. Admittedly, in the present case, the contraband was seized and sealed under a cover of panchanama. However, though the authorities ought to have drawn the samples before the concerned Magistrate, in terms of Section 52-A of the Act, they have drawn the samples at the scene.
13. A reading of Rules 8 and 9, it is clear that after seizure of material, the concerned officer shall make an application in Form-5 to the concerned Magistrate by preparing an inventory in Form-4 at the earliest. Time was not fixed either under Section 52-A or under the Rules specifying the time within which such application has to be made to the concerned Magistrate for certification. When the Act and Rules do not contemplate any fixed time, the Courts cannot fix the time which the legislature never intended. The reasonable time and at the earliest are the words used to 8 accommodate the situation depending upon the facts of each case. It is to be noted that in one case, one month may not be reasonable time and in another case, the period of three years may be reasonable time, if the facts justify such delay. Therefore, prescribing time limit is against the legislative intention.
14. In Kashif v. Narcotics Control Bureau1, relied upon by the learned counsel for the petitioner, the Delhi High Court prescribed the time limit as 72 hours for production of contraband before the Magistrate, which according to me, is not in terms of the law laid down by the Apex Court in catena of decisions. The Apex Court, while interpreting the word 'reasonable time' in the absence of any fixed time, has held that there cannot be any fixed or straight jacket time to be read in and it all depends upon the facts and circumstances of each case. Therefore, the aforesaid ratio laid down by the Delhi High Court is not appealling to this Court.
15. In the present case, samples were drawn at the place of seizure, which is contrary to the existing procedure, but such a procedure is not vague prior to coming into force of Rules. 1 Bail Application No.253 of 2023, dated 18.05.2023 9 The seized contraband was produced before the Magistrate for certification of inventory and again, the authorities have drawn fresh samples before the concerned Magistrate and one of such samples was sent for laboratory. Mere drawing of samples at the scene has no bearing and such a defect in conducting the investigation has been cured by drawing the samples subsequently in the presence of Magistrate. Even assuming that there is a procedural lapse in conducting investigation or in conducting seizure and search, such a lapse enjoins an obligation on the Court to scrutiny the material on record carefully. However, that will not go to the advantage of the accused and seizure or recovery process is not vitiated. The same is the law laid down by the Apex Court in a Constitutional Bench in Pooran Mal v. The Director of Inspection (Investigation), New Delhi2. The relevant portion reads as follows:
"25. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure."2
MANU/SC/0055/1973 10
16. It is also relevant to refer to the decision of the Apex Court in C.Muniappan v. State of Tamil Nadu3, whereunder it was held as follows:
44...The defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth..."
17. In the light of the above ratio laid down by the Apex Court, the contention of the learned counsel for the petitioner that there are procedural lapses and therefore, the petitioner is entitled for bail, cannot be accepted. The petitioner failed to establish how violation of such procedure had caused any prejudice to him. Mere drawing of samples at the place of scene does not make the seizure itself illegal, at the most it is relevance to obligate the Court to scrutinize the evidence carefully. In case on hand, such a defect was cured and fresh samples were drawn before the concerned Magistrate. Hence, the contention of the learned counsel for the petitioner is not merited.
3 (2010) 9 SCC 567 11
18. There is ample evidence on record to show that there was seizure of huge quantity of ganja i.e., nearly 50 kgs., which was stored in the premises owned by the petitioner and the seizure was made in the presence of the independent witnesses. The evidence of the witnesses clearly demonstrates that contraband was recovered from the house owned by the petitioner. Therefore, this Court is of the opinion that there are reasonable grounds to show the commission of offence and also possibility of the petitioner re-indulging repeatedly in similar kind of offences. Hence, it is not a fit case to grant bail to the petitioner and the petition is liable to be dismissed.
19. In the result, the criminal petition is dismissed. Miscellaneous petitions pending, if any, shall stand closed.
_______________ M.LAXMAN, J Date: 14.07.2023 TJMR