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ANDHRA PRADESH HIGH COURT AT AMARAVATI
Subba Reddy Satti, J.
Marra Rambabu – Appellant
Versus
State of Andhra Pradesh – Respondent
Criminal Petition No. 4252 of 2022
Decided On : 20-07-2022
BAIL - NDPS ACT - SECTION 42 AND 50 - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT: The court discussed the provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Section 42 empowers certain officers to conduct searches, seizures, and arrests without a warrant or authorization if they have reason to believe that an offence under the NDPS Act has been committed. Section 50 lays down the conditions under which searches of persons shall be conducted, including the requirement to take the person to the nearest Gazetted Officer or Magistrate if they so request. KEY LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION: The court interpreted Section 42 to hold that a Head Constable, being an officer superior to a Constable, is authorized to conduct searches, seizures, and arrests under the NDPS Act. The court also held that the failure of the police to comply with the provisions of Section 50, such as taking the accused to the nearest Gazetted Officer or Magistrate, does not render the evidence obtained during the search inadmissible. However, the weight to be attached to such evidence would depend on the facts and circumstances of each case. The court further held that the bar under Section 37 of the NDPS Act, which prohibits the grant of bail to certain accused persons, applies to the present case as the contraband seized was 50 Kgs, which is a commercial quantity.
Fact of the Case:
The petitioner, A4 in a case registered under Section 20(b)(ii)(C) read with 8(c) of the NDPS Act, filed a bail application under Sections 437 and 439 of the Cr.P.C. The prosecution alleged that the petitioner and his associates were found in possession of 50 Kgs of ganja and were arrested. The petitioner contended that the search and seizure were illegal as they were not conducted in accordance with the provisions of the NDPS Act.
Finding of the Court:
The court held that the Head Constable was authorized to conduct the search and seizure as he was an officer superior to a Constable. The court also held that the failure of the police to comply with the provisions of Section 50 of the NDPS Act did not render the evidence obtained during the search inadmissible. However, the weight to be attached to such evidence would depend on the facts and circumstances of the case. The court further held that the bar under Section 37 of the NDPS Act applied to the present case as the contraband seized was 50 Kgs, which is a commercial quantity.
Issues: 1. Whether the Head Constable was authorized to conduct the search and seizure. 2. Whether the failure of the police to comply with the provisions of Section 50 of the NDPS Act rendered the evidence obtained during the search inadmissible. 3. Whether the bar under Section 37 of the NDPS Act applied to the present case.
Ratio Decidendi: 1. The court held that the Head Constable was authorized to conduct the search and seizure as he was an officer superior to a Constable. 2. The court held that the failure of the police to comply with the provisions of Section 50 of the NDPS Act did not render the evidence obtained during the search inadmissible. However, the weight to be attached to such evidence would depend on the facts and circumstances of the case. 3. The court held that the bar under Section 37 of the NDPS Act applied to the present case as the contraband seized was 50 Kgs, which is a commercial quantity.
Final Decision: The court dismissed the bail petition.
JUDGMENT
Subba Reddy Satti, J. - This is an application filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') to enlarge the petitioner on bail.
2. The petitioner is A4 in crime No. 56 of 2022 of Rolugunta Police Station, Visakhapatnam District, registered for the offences punishable under Section 20(b)(ii)(C) read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS Act').
3. The case of the prosecution is that on 19.03.2022 at about 7:00 hours on receipt of information about illegal transportation of ganja, HC-459, Rolugunta Police Station along with his staff and mediators proceeded to sugarcane plantation belonging to Vuta Kannababu situated at outskirts of Y.B. Patnam village and found A3 and A4. On seeing the men in uniform, they tried to escape by leaving the ganja bags. However, Police apprehended A3 and A4 and seized 50 Kgs of ganja from their possession under cover of mediators' report. Basing on the mediators' report, the present crime is registered.
4. Heard Sri Kakumanu Joji Amrutha Raju, learned counsel for the petitioner and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor (hereinafter referred to as Public Prosecutor) for the respondent-state.
5. Learned counsel for the petitioner submits that Head Constable is not competent person to seize the contraband. He also submits that prosecution failed to follow the procedure contemplated under Sections 42 and 50 of the NDPS Act. Learned counsel places reliance on Mamta vs. State of Delhi, Bail Appln. 2270/2021 and Puran Mai vs. State of Rajasthan, S.B. Criminal Misc. Bail Application No. 3634/2022 and submits that the accused therein were granted bail on the ground that seizure was not sent to higher authorities as required under Section 42(2) of the NDPS Act and Police failed to comply with the mandate of Section 50(4) of the NDPS Act. He submits that in the present case also, Police failed to comply with the provisions of NDPS Act. He further submits that petitioner's father is suffering with ill health and petitioner has to take care of his father and petitioner is languishing in jail since 19.03.2022. Hence, he prays to grant bail to the petitioner.
6. Learned Public Prosecutor submits that Head Constable is higher in rank to that of Constable and thus there is no bar under the NDPS Act. He submits that whether the accused has been afforded the right contemplated under Section 50(1) and whether the authorized officer has violated the mandatory requirements are questions of fact which have to be proved during trial. In support of his version, he placed reliance on Chinta Devi & Ors. v. The State, He submits that investigation is pending. Hence, he prays to dismiss the bail petition.
7. I have given my anxious consideration and perused the record.
8. As per the mediators' report, petitioner along with A1 and A3 purchased 50 Kgs of ganja from A2 by paying Rs. 1,00,000/- and they intended to sell the same at Chennai for higher price. While A3 and A4 were waiting for vehicle, raid party came there, apprehended A3 and A4 and seized contraband from their possession. Further the search was conducted in the presence of VROs Rolugunta and Kothalam villages and samples were taken to send the same to laboratory.
9. It is appropriate to have a look at Section 42 of the NDPS Act which deals with power of entry, search, seizure and arrest without warrant or authorization. Section 42 reads thus:
'42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy o
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