High Court
Legal Reasoning
1 30-BA.1145-24.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD30 BAIL APPLICATION NO. 1145 OF 2024AMOL MADAN SADAFULEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Kakade Amarsinha Shankar.APP for Respondent-State : Mr. A. S. Shinde....CORAM : S. G. MEHARE, J.DATE :12.08.2024PER COURT :- 1.Heard the learned counsel for the applicant and thelearned APP for the respondent-State.2.The applicant seeks bail in Crime No.122 of 2024,registered with Tophkhana Police Station, District Ahmednagar,for the offences punishable under Sections 8(C) and 20(B)(ii)(C) of the N.D.P.S. Act.3.The prosecution has a case that the police had receivedthe secret information that one person is possessing Ganja forsale. He was storing the Ganja on the first floor of hisresidence. The police arranged the trap and went to the houseof the applicant. The applicant was apprised their intention tosearch the house. The police find 30 k.g. of green colour ganja
Legal Reasoning
2 30-BA.1145-24.odtlying in the house. It was recovered. It was seized from thespot of the incident. Then the application under Section 52-Aof the NDPS Act was moved and samples were taken before theMagistrate.4.Learned counsel for the applicant would submit thatSection 50 and 52-A of the Act have not been complied with.The flowering and footing tops were not segregated from theseeds and leaves. Therefore, recovery of the commercialquantity is doubtful. He further argued that taking the sampleon the spot of the incident soon after the seizure isimpermissible in the law. Therefore, Section 37 would not beapplicable. Hence, he may be granted bail. 5.Learned APP has vehemently opposed the application.He would submit that in this case, Section 52-A of the NDPSAct has been complied with. The samples have been obtainedin presence of the Magistrate. Therefore, the applicant cannotsay that Section 52-A has been violated. He would submit thatSection 52-A deals with the disposal of the property and notthe seizure on the spot of the incident. He also argued that theHon’ble Supreme Court in the case of Union of India Vs.Mohanlal and another ; 2016 (2) Crimes (SC) 25 has directedthe DDC to take the steps how to stock and destroy under the 3 30-BA.1145-24.odtsupervision of the Head of the concerned Department. Underthose directions, the Heads of the Department were grantedleave to apply for its disposal under Section 52-A to theMagistrate. Relying on these directions, he has vehementlyargued that such a defect can be cured in the mean time.Reading this paragraph, it was a guideline for the disposal ofthe destruction of the stock lying with various departments.That requires the quick disposal after the seizure by anapplication to the learned Magistrate. He further relied on thecase of Mukesh Rajaram Chaudhari Vs. State of Maharashtra ;2023 All.M.R. (Cri.)3688 and vehemently argued that takingthe samples from the spot of incident is no violation. In thiscase, the seizure was before the Narcotic Drugs andPsychotropic Substances (Seizure, Storage, Sampling andDisposal) Rules, 2022. Therefore, the Court in paragraphNo.16 observed that there was no need to send the sampleswhich were drawn before the Magistrate to the ChemicalAnalyser, prior to 2022 Rules. Now the rules have cleared thecontroversy. It has also been observed in paragraph No.15 thatas per the new 2022 Rules, now, different procedure is laiddown. After seizure, the contraband needs to be producedbefore the Magistrate and then samples are to be drawn andthen sent to the Chemical Analyser. Contention on behalf of the 4 30-BA.1145-24.odtapplicant is earlier lacuna was taken care in Rules. Since thecontraband was seized before implementing the Rules 2022,the Court record the findings that compliance under Section52-A was not violated. 6.In Union of India Vs. Mohanlal (Supra) in paragraphNo.20, the Hon’ble Supreme Court has observed that no soonerthe seizure of any Narcotic Drugs and Psychotropic andcontrolled Substances and Conveyances is effected, the sameshall be forwarded to the officer in-charge of the nearest policestation or to the officer empowered under Section 53 of theAct. The officer concerned shall then approach the Magistratewith an application under Section 52A(ii) of the Act, whichshall be allowed by the Magistrate as soon as may be requiredunder Sub-Section 3 of Section 52A, as discussed by us in thebody of this judgment under the heading ‘seizure andsampling’. The sampling shall be done under the supervision ofthe Magistrate as discussed in paras 13 and 14 of this order.Thereafter, Rule 2020 have been framed. Rule 8 speaks ofapplication to Magistrate. This Rule is in the replica of theobservations of the Hon’ble Supreme Court in Mohanlal(supra). Rule 9 further provides for drawing the samples inpresence of the Magistrate. Reading this Section, in no manner 5 30-BA.1145-24.odtof doubt it can be said that the samples must be taken beforethe Magistrate and not before it. By catena of judgments, ithas been held that taking the samples on the spot of theincident may not vitiate the trial. But, the accused cannot beconvicted.7.Learned APP is correct in arguing that since the ganjahas been recovered from the house, notice under Section 50 isnot received.8.Considering the law laid down and the Rules of the2022, the Court is of the view that it is the duty of theInvestigating Officer to seal the entire contraband recovered onthe spot with specific identification marks and he should notdraw the samples. He has to immediately forward the seizedmaterial to the nearest Officer-In-charge of the nearest PoliceStation or to the office empowered under Section 53 of the Actand apply to the Magistrate at the earliest under Sub Section(2) of Section 52-A of the Act in Form-5. Rule 9 is aboutdrawing the samples in the presence and under the supervisionof the Magistrate. It is clear that no officer seizing the materialis authorized to take the samples soon after the seizure on thespot of the incident. That raises the doubt about its purity and
Decision
6 30-BA.1145-24.odtquantity. Rule 10 also provides for the quantity to the drawnfor the sample.9.This Court at Principal Seat Bombay in case of ShivajiGorakh Satpute Vs. State of Maharashtra in Bail ApplicationNo.2865 of 2022, dated 15th September, 2023 relying on theview of Hon’ble Supreme Court in case of Simarnjit Singh Vs.State of Punjab in Criminal Appeal No.1443 of 2023 held thatdrawing samples from all packets at the time of seizure is notin conformity with the law. The Hon’ble Supreme Court inSimarnjit Singh (supra) extracted the findings of the Hon’bleSupreme Court in Union of India Vs. Mohanlal (supra) thatdrawing samples from all the packets at the time of seizure isnot in conformity with the law. Reading the judicialpronouncement on this point and Rules 2022, the Court is ofthe view that the prosecution has not strictly complied withSection 52-A of the NDPS Act. The Supreme Court hasobserved that the prolonged custody infringes the fundamentalright under Article 21 of the Constitution of India and grant ofbail on the ground of undue delay in trial is not fettered bySection 37 of the NDPS Act.10.In view of the above, the Court is of the view that theapplicant deserves bail. Hence, the following order : 7 30-BA.1145-24.odtO R D E R(i)Bail Application is allowed.(ii)Applicant AMOL MADAN SADAFULE be releasedon bail on furnishing P.B. and S.B. of Rs.50,000/-(Rupees Fifty Thousand only) with one solventsurety of like amount, on the followingconditions :(a)The applicant should not tamper with theprosecution witnesses.(b)He should not involve in the identical crimehenceforth. (c)He should attend the trial on each and everydate. (S. G. MEHARE, J.)...vmk/-