lN THE HIGH COURT OF ANDHRA PRADESH AT AMA TUESDAY ,THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE Between : :PRESENT: THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL PETITION NO.I 2299 OF 2025 1. MuI'n GoIIari, S/o.JagannathGollari, Hindu, Age 38 years, R/o.Nimalapalem, Allurikota, chl-trakonda block, Malkangiri Distrl'ct, odI'Sha State. (presently lodged jn Rajahmundry central prison) Rep. By his Brother- Kilo Trinadh, R/o D.No. 6-21/a, TummI®Selu Village, Pathakota panchayathI', Pull'metlu revenue village, y ramavaram mandalam, AIIurj SI'tharama Raju, Andhra Pradesh-533 483. 2. Kilo Debo, s/o.DomburH Hindu, Age 32 years, R/o.D.No.1-1912, AG Koderupalli vf'llage, Choppalli post, chl'nturu Mandal.(presently lodged in Rajahmundry central Prison) Rep. By hI-S Brother-Kilo Trinadh, R/o D.No. 6- 21/a, Tummiselu Village, pathakota panchayathi, pu'imetlu revenue vl-Ilage, Y ramavaram mandalam, Alluri Sjtharama Raju, Andhra pradesh-533 483. ...Petitl-oner/A-1 AND A-2 AND The State ofAndhra pradesh, rep by its public prosecutor, High Court ofA.P., Amaravati, Guntur DistrI-Ct, through the State SHO, Moothugudem p,s., AIIurl' Sitharama Raju District, Andhra pradesh Respondent/complainant petitI-On under Section 480 & 483 OF BNSS, 2023, praying that in the cl®rcumstances stated I'n the memorandum of grounds filed jn support of the crl'mjnal =<<<{{<+ .~J petition, the High Court may be Pleased tO enlarge the Petitioner On ba" -ln Crime No.80/2024, dated 25/10/2024 on the f-lle Of Mothugudem Police Station, Alluri sitharama Raju District reg-lStered under Sections 111(2)(b) BNS, 8(c) I/W 20 (b) 'li) (c) NDPS Act 1985 g rou nd:hfi:lepdetllt:onsucpopmolrfngthoenr:o:rf haenadrl nugp'ounpohneapr:nr:sltnhge tha:g::t:tlotns ao:dj;se /f ` RAJANI NELAKUDITI Advocate for the Petitioners, PUBLIC PROSECUTOR for the Respondent and the Court made the following. ORDER This Criminal Petition, u/See.480 & 483 of the Bharatiya Nagarik suraksha sanhita, 2023, has been filed by the petitioners/A1 & A2, seeking bail, in cr'lme No.8O/2024 of Moothugudem police Station, ASR District. 2. A case has been registered against the Petitioners and Others for the offence punishable u/see.111(2)(b) of B.N.S and See.20(b)(ii)(C) r/w 8(c) of NDPS Act. 3. Heard learned counsel for the Pet'ltiOnerS and the learned Assistant public prosecutor representing the respondent/State. 4. Case of the prosecution, in brief, iS that, On 25.10.2024 at about 9.00 pm, on receipt of credible information, regarding illegal possession and transportation of ganja, the s.I of Police, along with Staff and mediators ... / tr- \-3 rr>>>>}i 2 conducted vehicle checking at opposite to Mothugudem police station. They observed a motorcycle bearing no.AP 38 LW 4987 coming towards them. On seeing police, the rider and pillion rider of the motorcycle stopped the same and tried to escape. Then police apprehended them and on enquiry, they disclosed their identity particulars as that of Al and A2 and police found 22 kgs of ganja in their possession. Police arrested Al and A2 and remanded them to judicial custody. They confessed the involvement of two others in this crime. 5. Heard. Perused the record. 6. Learned Assistant Public Prosecutor submits that major part of the investigation is completed except filing of charge sheet for want of RFSL report and prays to dismiss the petition. 7. Learned counsel for the petitioner submits that the petitioners have been in judicial custody from 26.10.2024 and most of the investigation 'IS completed and requested to enlarge the petitioners on bail. He further contended that the procedure contemplated under Section 52-A of NDPS Act has not been complied with. 8. After careful observation of the mater'lal on record and submissions made on behalf of both sides, it is evident that the petitioners were in judicial custody from 26.10.2O24 and the contraband involved is 22 kgs i.e. two kgs more than non-commercial quantity. Learned counsel for the petitioners `` ` c-_rs ha= .\`l 3 places reliance on the judgment of the Hon'ble Apex Court in between simaranjit singh vs. state of punjab1 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 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. 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. 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." 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 bv this Court in the case of MohanlaI1. This creates a serious doubt about the prosecution'S case that substance recovered was a contraband. 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 appeIIant is concerned and quash his conviction and sentence. The appeal is accordingly allowed. 9. Learned counsel for the petitioner contends that even if the submission made on behalf of the prosecution is considered apparently , there is a delay of more than five months in taking action in compliance of Section 52-A of NDPS Act. The learned counsel for the petitioners assert that if such particulars had been provided, they would have been able to I 2023 Lawsuit(SC) 859 -* st--® Las I/ 4 argue whether a delay occurred in drawing samples and whether such delay is fatal to the prosecution's case. The learned counsel for the petitioners relied on the decision in Kash,'f vs. rvarcof,-cs Con fro/ Bvreau2, wherein the Delhi High Court observed as follows: "23.The reason for strict time frame and collection of sample has been elucidated by a coordinate bench of this court in the judgment of Rishi Dev @ Onkar Singh v. State (20O8 : DHC : 1513) in CRL.A. No. 757/2OOO decided on 01.05.2008 wherein it was observed as under: "8....The above passage shows that there I-S a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event. 19. This Court is unable to agree with the approach adopted by the trial court, especially its observations highlighted above. The record of the case should contain entry in writing about the sample being sent for testing within the time specified by the Narcotic Control Bureau. A strict compliance of this requirement has to be insisted upon. The reason is this. The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibiI-Itv that the Samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better.'' XXX 28. What is reasonable time depends on the facts and circumstances of each case. However, it cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame. 29. In the present case, the application for drawing of sample and certification of seizure memo under section 52A NDPS was filed on 22.04.2022 i.e., after 51 days from the period of last seizure on 02.03.2O22. 3O. A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under section 52A NDPS or drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power and possession, is immune from tampering and mischief. Furthermore, no reasons have been 2 2023 SCC OnLine Del 2881 / Gftyg3ffi 5 fau:n:I:chaef:nnbxlntrihOer ®Raer:p^:nFd®e^nt^,fnO:.tP,e delay of 51 days for moving an application under section 52A NDPS." 10. ln KL,rva Ramesh vs. 7lhe Sfafe of re/angana3, the High Court of Telangana state held that.I 1t::n?.ec¥:^n^ :_24!3_)i _ol!_ tPe,. NPPS_ Act envisages that when an aafilpol#at#oen ;snn#raadt:^tno tEh,j}he^ffreC± ^t!|:_-ty aigP;tii\`te y;S;I:g±_osoL:: l asW '#:; ba: , =:lnoriwar:!e application -Further, Secir;;--gZi(i;-of' {uh': uifDoX:'A:ts ;:aadysDea's under:- ",#of%fthp.thaHnadin^S ::y_i_P!n^p nc_o_n_i_a!ped ip _i_h_e Indian Evidence Act, 138ff7e2nc:er Htnhdeer:::.eA i.Chr!#itnv!_+?!o_i5!df-e,, 'i 9i.:, :i::a#' cLoVu'r'tffgACa[; oriff,:nn :eh: nndo::^thh!:v^A^c:t: s_P.aLIl_ lt[e_at th 6 i-n-v.:-wif4ri:{rf: ife'oygruau# ol;y:I:%coat%c darnudg sa :`rl #=ycnhfo!rQO%inCI ^S_u brdS!?.I_c? S: i_i_rif-r-iiliJ I i': vbs;i_'n;:vegs' ao#"coounlv':;::oct:cs aMn : a:snt%a I::i aOQf nSr:mmQPrI\: sb ` I:a^:^n^ y_ri g_= r_ ::_i_i--:p Jt;if `(u£_;: ; du 'ceu%IIf'i VeCdy ab; GtehS= Magistr?the, aTS Primary.€_yidence in -riSiE;it ;f-:i:; d%ena::.'' 1lr8; nlohnuas;aHCe+rf:f!C:t!O^P^~P_a_dLe_' |b_Y_ _ ihi---giviii-si;vir5s regarding the i %n#ofya #rrae£ptaarHed_ ,_ t^hv:_P_h_`?tP_P:r_S!ih-s i.atke ; I va n i I ffh;; ;; sat`coof :ac%p'Iue':I gd r:nwen #hoeu lRabaei :rt:aattQeQd £arSa P,rinmHa^rry^eLj!! ftP_c3 i|n_ -;P Sfeit.;; :s; i; :ffi;na::: 'F;e::%o:: , t:£i,!.:g,:sir_aat:ns_:r,e_ pru_n_dude:r! _o_bl!ip ati6.i -iJi;trJk: i; I t-%{';euq':5e':;C;f '[:: I ep'oOl;:6 office r clOon Cerned for ceriiPcLa^t!^J,n_ _!ith|i_if-; iis`:;:i:_:_I:-oVruu5nO3 uu: ::;a;. 1:~e ;; -;; --:;; -:i +Thhae:^e!::e^,;.h,i : _ =sli;|i -ir.iI~Js: i'h:.i I utuh-: ruecI£sy ' every rdeaqtu!rnenm\:,nht.,^ohnthp^a[_o_f,: !h_3 _Isalr_n;I M ag i 5irr=i6 s_' ct-;ita{':u|I`n -:'l5e'a5r t'eOrmCsVCt:ye dtha:e po: I i%e! 'I Cnhffitr}oer arphpnI:caart!oanrd fo+rL !h eJ jiu!ar ;i;S-i-i Eve rf`f#:a5ti':.'n ;'s: i: a:: Ir:S: d[ nbey tihses upaon I:ceenpfffcrfeirfi rc£otnac.: r.n+e^:,,^ !h.: _ a_i_t§; Ip_-fr i i.i Jfr i';I;i:_svk' £f 'vu:%# : 5uaDnyd I Ss:umannI=e. :faCrearf!fcnptte^s,!s_ t2!3_n__¥ P a^nq the d.ati -6;-;hi:i' {hv: rir;;:::ngtaat'if:e samples were sent to the Forens-ic scien;e-[rfbJ;i;grfe;'#n#yw:i5s. ll. From the reading of section 52 (3)(a) of the NDPS Act it is clear that when an application is moved to that effect, the Magistrate sha" as soon as allow the application. As seen from the record, there is jnord,'nate delay I'n drawI'ng Samples I'n the presence of a Magistrate. 12. At this stage, the allegations against the petI-tjOners are subject to the trial's outcome, The trI'al iS anticipated tO take a considerable amount of tI'me. Bail serves the purpose of allowing an accused to remain free until .q{ -*.. 3 MAN/TL/0259/2023 6 their guilt or innocence its determined. lt is settled law that mere apprehension that the accused would tamper with the prosecution evidence or intimidate the witnesses cannot be a ground to refuse bail unless the Prosecution Shows that the accused trI'ed for Such tamPering/intimidation. 13. The petitioners' continued preventive custody cannot be based on an unsubstantiated suspicion that they might tamper with the evidence or influence witnesses. Most of the witnesses are shown to be official witnesses and the release of the accused would not cause hampering of investigation. It is not in dispute that the petitioners have got permanent abode, there is no possibility of fleeing from justice. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this Stage, Subject tO the compliance Of terms and conditions mentioned in this order. 14. ln the result, the criminal Petition is allowed with the following conditions: (i) The petitioners/Al and A2 herein shall be released on their executing a personal bond for Rs.25,000/- (Rupees twenty five thousand only) each with two sureties for a like sum each to the satisfaction of the learned Judicial Magistrate of First Class, Rampachodavaram; 7 (ii) On release, the -petitioners shall appear before the Station House Officer concerned on every Sunday between 10.00 a.m. and 12.00 noon, for a period of three (03) months. (iii) the petitioners shall not directly or indirectly contact or threaten the witnesses under any circumstances and any such attempt shall be construed as an attempt to influence the witnesses and shall not tamper evidence and shall cooperate with the investigation. (iv) lt is made clear that the petitioners shall scrupulously comply with the above conditions and breach of any of the above conditions will be viewed seriously and prosecution is at liberty to move an application for cancellation of the bail. However, nothing expressed hereinabove shall be construed as an expression on the merits of the case. sd/-p.u.v. BHASKAP` RAG ASSISTANT !STRAR /ITRUE COPY// sEC"ON OFFICER To, 1. The Judicial Magistrate of lst class, Rampachodavaram. 2. The Superintendent, Rajahmundry Central Prison. 3. The SHO, Moothugudem p.s., Allurl-Sitharama Raju District, Andhra Pradesh 4. One CC to M/s. Rajani NelakuditI-Advocate [OPUC] 5. Two cos to Public Prosecutor (AP) High Court ofA.P., Amaravati [OUT]. 6. One spare copy Jr/ HIGH COURT TMR,J DATED:01/04/2025 ORDER CRLP.No.2299 of 2025 ALLOWED -,- cS:|1