Madras High Court
Harikrishnan @ Hari vs / on 31 October, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.25026 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :27.10.2022
Pronounced on :31.10.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.25026 of 2022
Harikrishnan @ Hari .. Petitioner/Accused
/versus/
Inspector of Police,
T-3, Korattur Police Station,
Chennai.
(Cr.No.1166/2021) .. Respondent/Complainant
Prayer: Criminal Original Petition has been filed under 439 of Cr.P.C.,
to enlarge the petitioner on bail on any condition in C.C.No.122 of 2022 on
the file of the Principal Special Judge, NDPS Act, Chennai in Crime
No.1166 of 2021 pending on the file of the Inspector of Police, T-3, Korattur
Police Station, Chennai.
For Petitioner :Mr.T.S.Sasikumar
For Respondent :Mr.N.S.Suganthan
Govt. Advocate (Crl.Side)
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Page No.1/9
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.25026 of 2022
ORDER
The petitioner is arrayed as 6th accused in C.C.No.122/2022 on the file of Special Court for NDPS Cases at Chennai. He was arrested on 14/12/2021 and search of his house led to recovery of 10 LSD Stamps, 4.988 grams of MDMA–meth power and 0.525 grams cannainoid resin. The petitioner along with other accused were tried for offences under Sections 8
(c) r/w 22 (c) and 29(i) of NDPS Act. His bail petitions filed earlier were dismissed and this petitioner is his third bail petition.
2. The case of the prosecution as found in the Final Report is that, based on the telephonic information received on 11/12/2021 by the respondent police regarding sale of LSD stamps, a prohibited substance the chain of search and seizure were conducted and that has led to recovery of 460 LSD stamps, 5 grams of MDMA @ Meth power and 0.525 ½ grams of resin. 7 persons were arrested in this connection. Page No.2/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022
3. First, 23 LSD stamps and a REDMI A2 mobile Phone from Daniel Jacob(A-3) and 27 lSD Stamps and a OPPO F17 Mobile Phone from Dhanush (A-2) under mahazar dated 11/12/2021 near Pump house at Korratur Railway Station sub-way, at about 15.20 hrs. Case in Crime No.1166/2021 was registered. These two accused were arrested and remanded to judicial custody. From the confession given by these two accused, on the next day i.e 12/12/2021, at about 07.00 hrs, near the Padi Railway track under 200 feet road over bridge, Karthick (A-4 ) and Rakesh (A-5) were found exchanging LSD Stamps. From each of them, 10 LSD Stamps and a cell phone were seized under mahazar and they were arrested on 12/12/2021. In continuation of that, based on the information, Rohit (A-1) who supplied the LSD stamps seized from A-2 to A-5, was arrested on 12/12/2021 at about 20.00 hrs near MGR Mandram, RS Road. From A-1 possession of 70 LSD stamps and a parcel containing 305 LSD stamps which was addressed to A-1 and sent through AIRMAIL was recovered. The confession of A-1 has led to arrest of this petitioner (A-6) and Kishancharan (A-7) on 14/12/2021. These two accused were found exchanging LSD Page No.3/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022 stamps and cannobinoids resins near Padi, Pandurangapuram burial ground. Further search of the residence of the A-6, an envelop received through Registered Post from Ahmedabad containing 10 LSD stamps, 5 grams MDMA @ meth powder and ½ gram of cannobinoids resins were recovered.
4. The seized properties along with Form-91 had been produced before the Special Court on 28/12/2021.The contrabands viz, LSD stamps, MDMA powder and resin were sent for chemical analysis and the Analysis Report has confirmed the presence of Lysergide (LSD) and Methylene- dioxy-meth-amphetamine ( MDMA) both are psychotropic substances and cannabinoids, a chemical constituents of cannabis, which are covered under NDPS Act respectively.
5. The Learned Counsel for the petitioner in support of the bail petition by referring the secret information recorded as per Section 42(2) of the NDPS Act and the content of the information found in FIR pleaded that they both differs. Since the information recorded not in consonance to the Page No.4/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022 other material evidence and it being a violation of mandatory provisions, the case of the prosecution is highly doubtful. Further, it is contended that there is inconsistency about the actual weight of 10 LSD stamps alleged to have been recovered from the petitioner. Since the weight is less than the commercial quantity, the rigor of Section 37 of the NDPS Act is not applicable. The delay of 2 months and 10 days in forwarding the alleged seized contraband to the Special Court give room for suspicion of manipulation and substitution. In the light of the fact that though the mahazar for seizure does not indicate any marking of the packets containing contraband seized from each of the accused, the Chemical Analysis Report indicates that they had marking of serial numbers and marked as “S-1” to “ S-7”. This causes doubt whether the material recovered from the accused under mahazar was actually sent for analysis.
6. To buttress the proposition that delay in forwarding the contraband seized to the Special Court immediately will enure benefit of doubt in favour of the accused, the Learned Counsel for the petitioner rely Page No.5/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022 upon the following judgments:-
(i) Valsala-vs- Stateof Kerala: 1993 Supp ( 3) SCC 665.
(ii) Dr.L.Prakash –vs- State : 2010(3) Crimes (Mad) 582.
(iii) Hayath @ Hayathullah –vs- State in Crl.O.P.No.20750 of 2022 order dated 12/10/2022.
7. Per contra, the Learned Government Advocate (Crl.Side) appearing for the State contended that, the prosecution has laid Final Report after seizure of totally 460 LSD stamps from the accused persons, MDMA powder and resin which were procured through online paying crypto currency. The accused are addicts, turned peddlers who were selling LSD stamps to soft targets. The petitioner, who is part of the conspiracy to procure prohibited drug had in his possession a part of the drug procured. The property along with Form-95 was forwarded to the Special Court on 28/12/2021 and the delay in forwarding the contraband to the Special Court was due to administrative reason and the same cannot be a reason for granting bail in case of offence involving commercial quantity. The Page No.6/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022 judgments cited supra, after trial on appreciating the evidence cumulatively cannot be relied for granting bail pending trial.
8. This Court, on considering the gravity of the offence and the quantity of the contraband seized, the spread of the tentacles of the drug mafia, which is a prima facie seen from the Final Report laid by the prosecution, earlier dismissed the bail petition and there is no change of circumstances to revisit the facts again. The observations in the judgments cited (except Crl. O.P.No.20750/2022) are all on appreciating the evidence on completion of trial.
9. As far as this case is concerned, the facts does not satisfy the condition imposed in Section 37 of the NDPS Act. The recovery of postal cover from the residence of this petitioner, which contain 10 LSD stamps, 5 grams of MDMA powder and ½ gram of cannobinoid resin, all found to be prohibited Narcotic and psychotropic substances and the information unravelled through the confession of the co-accused that it is a large network Page No.7/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022 of illegal trafficking of Narcotic Drugs and Psychotropic Substances through online trade, it is possible for recurrence of offence, if the petitioner is released on bail. Therefore, this Court is not inclined to grant bail for the petitioner against whom prima facie evidence available that he was involved in trading LSD stamps of commercial quantity along with other co-accused.
10. Accordingly, this Criminal Original Petition for bail is dismissed.
31.10.2022 Index:yes/no speaking order/non speaking order ari To :
1.The Principal Special Judge, NDPS Act, Chennai.
2.The Central Prison, Puzhal-II, Chennai.
3.The Inspector of Police, T-3, Korattur Police Station, Chennai.
4.The Public Prosecutor, High Court, Madras.
DR.G.JAYACHANDRAN,J.
Page No.8/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25026 of 2022 ari Delivery Order made in Crl.O.P.No.25026 of 2022 31.10.2022 Page No.9/9 https://www.mhc.tn.gov.in/judis