The Andhra Pradesh High Court observed that under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the process of drawing samples must be in the presence and under the supervision of the Magistrate and not at the time of seizure.

The Court observed thus in a criminal petition under Sections 437 and 439 of the Criminal Procedure Code (CrPC) filed by a person seeking bail.

A Single Bench of Justice T. Mallikarjuna Rao noted, “A perusal of mediators report and remand report clearly shows that the samples are drawn in the presence of mediators, but not in the presence of Magistrate.”

The Bench relied upon the judgment in the case of Simarnjit Singh v. State of Punjab [2023 Law Suit (SC) 859] in which it was held that there is no provision in NDPS Act that mandates taking of samples at the time of seizure.

In this case, a crime was registered against the petitioner person and others for the offence punishable under Section 20(b)(ii)(C) read with 8(c) of the NDPS Act. Last year, on credible information about transportation of Ganja, the Sub Inspector of Police along with his staff and mediators rushed to a road and found the accused having in possession of 22 kgs of Ganja and 1 kg liquid Ganja (hashish oil). The counsel for the petitioner contended that while drawing samples, the investigating authorities did not follow the procedure as contemplated under Section 52-A of the NDPS Act.

The counsel further pointed out that even the contents of the remand report showed that the samples were not drawn before the Magistrate and as such it was in deviation to the procedure contemplated under Section 52-A of the NDPS Act and moreover, the accused was in judicial custody since July 2023. On the other hand, the Assistant Public Prosecutor submitted that the investigation was still pending and that there were no previous criminal antecedents to the accused.

The High Court in view of the above submissions said, “… the petitioner is in judicial custody for more than four months. In view of the aforesaid facts and circumstances of the case, this Court is inclined to grant bail to the petitioner/A.3.”

In the said Simarnjit Singh case, the Court had held that the process of drawing of samples must be in the presence and under supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

“The petitioner/A.3 shall be released on bail on executing a personal bond for Rs.25,000/- (Rupees twenty five thousand only) with two (02) sureties for a like sum each to the satisfaction of the learned Judicial Magistrate of First Class, Narsipatnam … After release, the petitioner shall appear before the Station House Officer concerned, once in a week i.e. on every Sunday between 10.00 a.m and 01.00 p.m., for a period of three (03) months”, directed the Court.

The Court also ordered that he shall not hamper the investigation and tamper with the prosecution witnesses.

Accordingly, the High Court allowed the petition and granted bail to the accused.

Case Number: CRIMINAL PETITION No.47 of 2024

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