Back
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Dr. K.G. Shankar, J.
Abdul Aziz - Appellants
Vs.
State of A.P. - Respondent
Criminal Petition No. 4145 of 2014
Decided On: 29.04.2014
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 8(C), 22, 28, 29, 42, 50, 67 - VIOLATION OF SECTIONS 42 AND 50 - MANDATORY COMPLIANCE - SEARCH AND SEIZURE - PRESENCE OF GAZETTED OFFICER OR MAGISTRATE - COURT'S ANALYSIS AND CONCLUSION - INTERPRETATION OF SECTIONS 42 AND 50 - APPLICABILITY TO SEARCH OF PERSON AND PREMISES - COURT'S DECISION ON BAIL APPLICATION.
Fact of the Case:
The petitioners, A.2 and A.3, were accused of offenses under Sections 8(c) read with Sections 22, 28, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). They were allegedly found in possession of Methamphetamine, a psychotropic substance, in a hotel room. The prosecution claimed that the provisions of Section 50 of the NDPS Act, which requires the presence of a Gazetted Officer or Magistrate during a search, were complied with.
Finding of the Court:
The court held that the provisions of Sections 42 and 50 of the NDPS Act are mandatory and must be strictly complied with. However, the court found that the petitioners had voluntarily declined the offer to be searched in the presence of a Gazetted Officer or Magistrate. Therefore, the court held that the NCB officials did not violate the mandatory provisions of Sections 42 and 50 of the NDPS Act.
Issues: 1. Whether the provisions of Sections 42 and 50 of the NDPS Act are mandatory and must be strictly complied with? 2. Whether the petitioners' voluntary declination of the offer to be searched in the presence of a Gazetted Officer or Magistrate absolves the NCB officials from the mandatory requirement of Sections 42 and 50 of the NDPS Act?
Ratio Decidendi: 1. The court interpreted Sections 42 and 50 of the NDPS Act and held that they are mandatory provisions that must be strictly complied with. The court relied on previous case law to support this interpretation. 2. The court found that the petitioners had voluntarily declined the offer to be searched in the presence of a Gazetted Officer or Magistrate. Therefore, the court held that the NCB officials did not violate the mandatory provisions of Sections 42 and 50 of the NDPS Act.
Final Decision: The court dismissed the petitioners' bail application, holding that they had failed to show that they were likely to be acquitted at trial.
Dr. K.G. Shankar, J.
1. The petitioners are A.2 & A.3 in NCB.F.No. 48/1/2/2013/NCB/HYD of Narcotics Control Bureau (N.C.B., for short) South Zone, Hyderabad. They allegedly committed offences under Sections 8(c)read with Sections 22, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act, for short). Out of 7 accused, 6 accused moved for grant of bail. I granted bail to A.5 & A.6 and dismissed the bail application so far as A.4 is concerned. Now, A.2 & A.3 moved for grant of bail. A. 1 did not seek for grant of bail.
2. The case of the prosecution is:
a) The N.C.B. officials received information that A. 1 would deliver Methamphetamine, a psychotropic substance in Room No. 304, Vishnu Priya Lodge, Kukatpally on 26-11-2013 to 2 persons who are in the lodge. The N.C.B. officials raided Room No. 304, Vishnu Priya Lodge along with mediators. A. 1 to A.3 were found in Room No. 304. A.1 allegedly confessed that Methamphetamine was kept in a black coloured rexin bag which was handed over by A.1 to A.2 & A.3. N.C.B. officials claimed that after issuing notice u/s. 50 of N.D.P.S. Act upon A. 1 to A.3, search was conducted after questioning whether A. 1 to A. 3 would like the presence of a Magistrate or a Gazetted Officer. It is their further case that the provisions of Sec. 50 of N.D.P.S. Act were complied with.
b) The further case of the prosecution is that the substance in the rexin bag seized from A.1 to A.3 was tested with the field drug testing kid. It was found that the bag contained Amphetamine, which is also a psychotropic substance. A.1 to A.3 made voluntary statements that they were manufacturing Methamphetamine illegally at Balaji Labs, Subashnagar, Jeedimetla, Ranga Reddy District. It involved the complicity of A.4 to A.7. As the present bail application is on behalf of A. 2 & A. 3 only, it would suffice if the allegations of the prosecution to the extent of the complicity of A.2 & A.3 are considered.
3. Indeed, one of the grounds urged by the learned counsel for the petitioners is that A.5 & A.6 had already been enlarged on bail and that A.2 & A.3 also deserved to be enlarged on bail. I am afraid that the complicity of A.5 & A.6 in the commission of the offence is quite distinct from the role played by A.2 and A.3 in the offence. Further, if the analogy of A.5 & A.6 is brought in, it may also be recalled that the bail application of A.4 was dismissed by me. I do not consider it appropriate to dismiss this bail application in limine on the ground that the bail application of A.4 was dismissed nor do I propose to allow this bail application summarily on the ground that A. 5 & A.6 had already been enlarged on bail. The case of each of the applicants in the present case has its own special dimensions. Consequently, each of the cases stands separately all by itself. I, therefore, consider it appropriate to deal with the case of A.2 & A.3 independently.
4. The N.C.B. officials effected seizure of the contraband. They also examined the accused u/s. 67 of N.D.P.S. Act. The learned counsel for the petitioners raised various contentions such as violation of Sections 42 and 50 of N.D.P.S. Act and also contended that the very mediators report was spurious. He referred to the mediators report dated 26.11.2013, which was computer typed in English and submitted that the signatures of the mediators were obtained on blank papers and the contents of the mediators report was subsequently prepared. The learned counsel for the petitioners drew my attention to various pages of the mediators report and particularly to page containing Annexure-A. There was a wide gap between the contents in Annexure-A and the signatures of the mediators. The learned counsel for the petitioners also submitted that same is the position in respect of Annexure-C. His contention is that had the report been prepared after the same was drafted, the signatures of mediators would have been just below the written portion in the pages containing A
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
