I [3369] i lN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI ,y,`+....``,`` WEDNESDAY ,THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE :PRESENT: THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RA CRIMINAL PETITION NO: 1973 OF 2025 Between : 1. K. Sharukan @ Sharuk, S/o Kumaranathan Aged 24 years, R/o.Kongalmedu Village, Gummidipoondi Taluk, Tiruvallur District, Tamilnadu State. 2. G. Arul, S/o Gajendhiran Aged 24 years, R/o.Samiretti Kandigai, Gummidipoondi Taluk, Tiruvallur District Tamilnadu State. Petitioners/Accused 1 & 2 AND The State, Station House Officer, Tada Police Station, Tirupati District, Rep by its public Prosecutor, High Court of Andhra Pradesh at Amaravathi. Respondent Petition under Sections 437 & 439 of Cr.P.C, (New Sections 480 & 483 of BNSS, 2023) praying that in the circumstances stated in the affidavit filed in support of the Criminal Petition, the High Court may be pleased to grant Regular Bail to the Petitioners/Accused Nos.1 & 2 by enlarging them on bail in Crime No.3/2025 of Tada Police Station, Tirupati District couNSEL FOR THE PETITIONER : SRl. MANIKANTA THOTA couNSEL FOR THE RESPONDENT : PUBLIC PROSECUTOR THE COURT MADE THE FOLLOWING ORDER APHCO10O91942O25 f/ E] IN THE HIGH C,O_UR.T.9_F.4pr.D_IRA PRADESH AT AMARAVATI (Special Original Jurisdiction) WEDNESDAY ,THE FIFTH DAY OF MARCH ll^/O THOUSAND AND TWENTY FIVE [3369] PRESENT THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL PETITION NO: 1973/2025 Betwee n : K. Sharukan @ Sharuk, and Others ...PETITIONER/ACCUSED(S) AND The State of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused(S): 1. MANIKANTA THOTA Counsel for the Respondent/complainant: 1.PUBLIC PROSECUTOR The Court made the following: ORDER: This Criminal Petition, under Sections 480 and 483 of the BNSS, has been filed by the petitioners/A1 & A2, seeking regular bail, in Crime No.3 of 2025 of Tada Police Station, Tirupatj District. 2. A case has been registered against the petitioners herein and others for the offences punishable under Sections 8 (c) r/w 20(b)(ii)(C) `..--` `-`\_--.--` of the Narcotic Drugs and .Psychotropic Substances Act,1985 (for short lthe NDPS Act'). 3. Brief facts of the case are that, on 08.01.2025, on credible information about transportation ganja, the Circle Inspector of police along with his staff and mediators rushed to Sri City Zero Point, Tada Village & MandaI, NH-16 and found one car bearing No.TN-09-CL-4739 transporting the ganja. The police found the accused in possession of 28 kgs of ganja in a car and seized the ganja from them. 4. Learned counsel for the petitioners/Al and A2 contended that while drawing samples the investigating authorities have not followed the procedure as contemplated under Section 52-A of NDPS Act. ln support of his contention, the petit-loners have brought to the notice contents of the remand report. 5. Learned counsel for the petitioners points out that even the contents of remand report show the samples were not drawn before the Magistrate and as such it is deviation to the procedure contemplated under Section 52-A of NDPS Act. Moreover, the petitioners have been in judicial custody since 08.01.2025. 6. On the other hand, learned Assistant Public Prosecutor submits that investigation is still pending. Ganja a[Ieged[y seized from the possession of accused is -28 kgs. He further submits that there are no previous criminal antecedents to the petitioners. 7. Heard both sides. Perused the material on record. 8. A perusal of mediators report and remand report Clearly Shows that the samples are drawn in the presence of mediators, but not in the presence of Magistrate. 9. ln a decision reported in between Simarnjit Singh vs. State of punjab7 wherein it was categorically held that: 16. Sub-section (3) of Sec.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 police 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. ln other words, the Process Of drawing of samples has to be in the presence and under supervision of the Magistrate and the entire exeroise 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 subsections (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 1 2023 Law Suit(SC) 859 ±zzzzii, i=2-g provision irf I.he Act that mandates taking of 'samples at th€ time of seizure. That is perhap= why none of the States claim to be taking samples at the time of seizure. 9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court ill the case of union of India v. MohanlaI & Ant. This creates a serious doubt about the prosecution's case that substance recovered was a contraband. 10. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence. ll. The appeal is accordingly allowed." 10. By following the above principle laid down, this Court found that the said principle is clearly applicable to the facts of the case. Moreover, the petitioners are in judicial custody since 08.01.2025. ln view of the aforesaid facts and circumstances of the case, this Court is inclined to grant bail to the petitioners/Al and A2. ll. Accordingly, the Criminal Petition is allowed on the following conditions: i. The petitioners/Al and A2 shall be released on bail on executing a personal bond for Rs.25,000/- (Rupees twenty five thousand only) each with two (02) sureties for a like sum each 2 (2016) 3 SCC 379 |`\\ '\\ \u to the satisfaction oflhe learned Additional Judicial Magistrate of First class, Sullurpet; and ii. After release, the petitioners shall appear before the Station House Officer concerned, once in a fortnight for a period of three (03) months; and iii. That the petitioners are directed not to hamper the investigation and tamper with the prosecution witnesses. //TRUE COPY// SD/-U.SRI DEVI` ASSISTAN REGISTRAR _rf - OFFICER FoI______ To, 1. The I Additional District & Sess-Ions Judge, Nellore 2. The Addit-lonal Judicial Magistrate of First Class, Sullurpet 3. The Superintendent, Central Prison, Nellore 4. The Station House Officer, Tada Police Station, Tirupati District 5. One CC to SRl. MANIKANTA THOTA Advocate [OPUC] 6. Two CCs to PUBLIC PROSECUTOR, H'lgh Court of A.P[OUT] 7. One spare copy Jr, \ HIGH COURT TMR,J DATED :05/03/2025 BAIL ORDER CRLP.No.1973 of 2025 ALLOWED ®FT NIRR 1&\5