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2025 Supreme(Online)(Kar) 33530
KARNATAKA HIGH COURT
S.R.KRISHNA KUMAR, J
SRI. SRINIVAS DALAVOI – Appellant
Versus
UNION OF INDIA MINISTRY OF HOME AFFAIRS – Respondent
WRIT PETITION NO.26737 OF 2024 (GM-RES)
For the Appellants/Petitioners: SRI. PRABHULINGA NAVADAGI, SRI. RANGANATH R.
For the Respondents: SRI. RAJASHEKAR S.
Procedural non-compliance with Sections 50 and 52A of the NDPS Act mandates quashing of charges due to infringement of the accused's rights during search and seizure.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 22(a), 27, 28, and 29 - Quashing of charge sheet due to procedural violations - Entire proceedings quashed as the search and seizure did not adhere to Section 50, which mandates that a person about to be searched must be informed of their right to have their search conducted in the presence of a Gazetted Officer or Magistrate, which was not done - Additionally, the procedure prescribed under Section 52A regarding the handling and disposal of seized substances was also violated. (Paras 10-24)
Facts of the case:
The petitioner, accused No.1, challenged the charge sheet filed against him in Spl.C.C.No.491/2023 concerning alleged narcotics offences, specifically claiming that the search and seizure conducted by the Narcotics Control Bureau did not comply with legal requirements, leading to a violation of his rights under the NDPS Act.
Findings of Court:
The proceedings were found to be flawed due to significant procedural lapses, including failure to inform the suspect of their rights during the search and improper handling of the seized contraband, leading to the quashing of the charge sheet against the petitioner.
Issues: The primary issues addressed include whether the search was carried out in compliance with Section 50 of the NDPS Act and whether the procedures for disposal of narcotic drugs under Section 52A were followed.
Ratio Decidendi: The court held that failure to comply with the procedural safeguards established under Sections 50 and 52A of the NDPS Act severely undermines the legitimacy of the search and any evidence obtained as a result, thereby necessitating the quashing of the proceedings against the accused. (Paras 10-24)
Result: The petition is allowed, and the impugned proceedings are quashed.
| Table of Content |
|---|
| 1. quashing of charges against petitioner. (Para 1 , 2) |
| 2. court observations on search and seizure violations. (Para 3 , 6 , 7 , 8 , 9 , 10 , 11) |
| 3. arguments regarding violations related to unlawful search. (Para 4 , 5) |
| 4. mandatory compliance with section 50 and 52a. (Para 13 , 14 , 15 , 16 , 17 , 18) |
| 5. impugned proceedings quashed due to procedural lapses. (Para 20 , 21 , 22 , 23) |
| 6. final order to quash proceedings. (Para 24) |
ORAL ORDER
In this petition, petitioner – accused No.1 seeks quashing of the impugned proceedings in Spl.C.C.No.491/2023 pending before the Trial Court against the petitioner – accused No.1 and Sri. Girish V. Male – accused No.2 for alleged offences punishable under Sections 22(a), 27, 28 and 29 of the NDPS Act , 1985 and for other reliefs.
2. A perusal of the material on record will indicate that on 23.05.2022, the respondents are alleged to have conducted search and seizure proceedings during the course of which they seized the subject contraband which weighed about 1.08 grams from the petitioner – accused No.1 and accused No.2 whose statements were recorded and they were arrested and thereafter enlarged on bail. After investigation, the respondents filed the impugned charge sheet on 16.02.2023 which is currently pending in the impugned Spl.C.C.No.491/2023 before the Trial Court and which is assailed in the present petition.
3. Heard learned Senior Counsel for the petitioner and learned counsel for the respondents and perused the material on record.
4. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned Senior Counsel for the petitioner submits that apart from the fact that the impugned complaint and charge sheet material do not disclose the commission of the alleged offences by the petitioner, the impugned search and seizure proceedings were conducted in violation of Section 50 of the NDPS Act thereby rendering the entire proceedings unsustainable in law. It is also submitted that the procedure prescribed under Section 52A of the NDPS Act was also not followed and the impugned proceedings deserve to be quashed on this ground also. In support of his submissions, he placed reliance upon the judgment of the Apex Court in the case of Union of India Vs. Mohanlal and another – (2016) 3 SCC 379 and the judgment of the Co-ordinate Bench of this Court in the case ofHanumantha and another Vs. State of Karnataka – Crl.P.No.11994/2023 dated 10.09.2024.
5. Per contra, learned counsel for the respondents would refute the submissions made on behalf of the petitioner and submit that in the light of the judgment of the Apex Court in the case of Narcotics Control Bureau Vs. Kashif – 2024 SCC Online SC 3848, there is no merit in the petition and the same is liable to be dismissed.
6. I have given my anxious consideration to the rival submissions and perused the material on record.
7. The undisputed material on record clearly indicates that the search and seizure were allegedly conducted on 23.05.2022; in this context, the seizure panchanama / mahazar clearly indicates that the said seizure was not conducted in the presence of either a nearest Gazetted Officer or the nearest Magistrate as can be seen from the seizure panchanama / mahazar, which reads as under:
Panchanama / Mahazar
Date: 23.05.2022
Time: 22.45 hrs
Place: Near McDonald’s Sadahalli Gate, New Airport road, Bengaluru.
Witness:
1. Sh. Rafeeq Pasha
S/o Ameer Jan
r/o Door No. 4, 3rd street,
Kartigenahalli Near Water Tank,
Yelahanka – 560 063.
2. Sh. Chadive Chandra Shekar Reddy
S/o C Venkat Reddy
No. 62.5th cross, Kattigenahalli,
Near Water Tank, Yelahanika-560063
On 23.05.2022, an information was received from reliable source that “ One short middle aged person by name Girish, would be currying cocaine and will be coming in his blue colour TVS XL, two- wheeler bearing registration number KA-04-EC-6586, to hand over the cocaine to his boss namely Srinivas, near to McDonald's at Sa
