Crl.O.P.No.2794 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 23.03.2022

Pronounced on : 29.03.2022

Coram::

THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

Criminal Original Petition No.2794 of 2022

Raju Ram Vishnoi,

S/o.Jagamalram,

No.11/06, Varadhan Street,

Sevenwells, Chennai – 600 001.

and

Vishnoiyan Ki Dhani,

Doongarwa,

Bargoda Tk,

Jalor District, Rajasthan.

... Petitioner/Accused

/versus/

State Rep.by,

The Inspector of Police,

NIB CID Police Station, Chennai.

... Respondent/Complainant

Prayer: This Criminal Original Petition is filed under Section 439 of Cr.P.C.,

pleased to enlarge the petitioner on bail in C.C.No.128 of 2019 (FIR No.121/2019)

on the file of this Hon'ble Court, in Crime No.65 of 2019 on the file of the

Inspector of Police NIB CID Police Station, Chennai.

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Crl.O.P.No.2794 of 2022

For Petitioner

: Mr.T.S.Saikumar,

For Respondent

: Mr.G.V.Kasthurai,

Additional Public Prosecutor (Crl.Side)

O R D E R

This petition for bail is filed by the sole accused in the case related to

seizure of 500 grams of heroin on 25.05.2019 at about 10.15 hrs, near Saravana

Stores, Purasaivakkam. The respondent police, on completion of investigation has

filed final report against the petitioner for offence under Section 8(c) and 21(c) of

Narcotic Drugs and Psychotropic Substance Act, 1985.

2. Contending that, the petitioner is in prison for nearly 2 years and

10 months in prison, in a case where the respondent police failed to comply the

mandatory provisions regarding search and seizure. The Learned Counsel for the

petitioner submitted that, the petitioner cannot be convicted for the alleged

possession of heroin of commercial quantity, since the search of the person was

not conducted in the presence of Gazetted Officer or any Judicial Magistrate as

mandated under section 50 of the NDPS Act. The contraband alleged to have been

recovered from the possession of the petitioner/accused on 25.05.2019, was not

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Crl.O.P.No.2794 of 2022

produced before the Court along with the accused at the time of remand. It was

produced before the Special Court for NDPS Act at Chennai only on 10/06/2019.

The samples from the seized material was not drawn as per the notification of the

Government. As per Notification No.1/89, not less than 5 grams of the drug ought

to have been drawn as sample for test. Whereas, in this case admittedly only 2

grams was drawn and sent to test. The said violation is a mandatory violation.

3. Per contra, the Learned Additional Public Prosecutor for the

state/respondent submitted that, the accused was explained about his right to be

searched before a Gazetted Officer or a Judicial Magistrate in writing. The

accused declined to exercise the option and submitted himself to be examined by

the Sub-Inspector of Police and only after getting his consent, he was subjected to

personal search.

4. Regarding the allegation about delay in producing the seized

contraband before the Court, the Learned Additional Public Prosecutor produced

the Form-91 wherein, the Judicial Magistrate has initialled on it with date as

25/05/2019 and contended that, the property was produced along with Form-91

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Crl.O.P.No.2794 of 2022

before the Judicial Magistrate before whom the accused was produced for first

remand. Thereafter, the property was produced before the Special Court as per the

instruction of the Judicial Magistrate.

5. Regarding the alleged violation of the Notification No.1/89, the

Learned Additional Public Prosecutor submitted that, no doubt only less than 5

grams was drawn as sample, but that was sufficient for the Laboratory to test and

they have given report that the sample contains diacetylmorphine (traded in the

name of heroin) and returned 1.017 grams of unexp