Case Note & Summary
The petitioner, Mr. Sayyad Mohammad @ Nasim, filed a writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka at Bengaluru, challenging the order dated 03.01.2022 passed by the Principal District and Sessions Judge, D.K., Mangalore, in Crime No.30/2021. The crime was registered by the Economic and Narcotic Crime Police Station, Mangalore, for offences punishable under Sections 25 and 3 of the Indian Arms Act, 1959, and Sections 8(c) and 20(B)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The petitioner sought quashing of the remand order and his release on bail. The facts leading to the case are that on 25-05-2021, the police received credible information that the petitioner was involved in drug trafficking. They conducted a search and allegedly recovered 10 kgs of ganja and a country-made pistol from his possession. The petitioner was arrested and produced before the Sessions Judge, who remanded him to judicial custody. The petitioner contended that the mandatory provisions of Section 52A of the NDPS Act, which require the seized contraband to be sampled and inventoried in the presence of a Magistrate, were not complied with. He argued that the sampling was done at the police station without any Magistrate's certification, making the seizure invalid. The respondents, represented by the State Public Prosecutor, argued that the provisions of Section 52A were directory and not mandatory, and that the remand order was valid. The High Court analyzed the provisions of Section 52A and relied on the Supreme Court's interpretation in various cases, holding that the procedure under Section 52A is mandatory and must be strictly followed. The court found that the sampling was done without the presence of a Magistrate and without certification, rendering the seizure suspect. Consequently, the court held that the remand order was unsustainable. On the issue of bail, the court considered Section 37 of the NDPS Act, which imposes twin conditions for granting bail: the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. The court noted that the petitioner had no criminal antecedents and that the procedural irregularities weakened the prosecution's case. The court concluded that the conditions for bail were satisfied and granted bail to the petitioner on certain terms and conditions. The court quashed the remand order and directed the petitioner's release on bail.
Headnote
A) Criminal Procedure - Remand Order - Validity - Non-compliance with Section 52A of NDPS Act - The order of remand passed by the Principal District and Sessions Judge, D.K., Mangalore, was challenged on the ground that the seizure and sampling of the alleged contraband (ganja) were not conducted in accordance with Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High Court held that the mandatory procedure under Section 52A, which requires sampling in the presence of a Magistrate and certification of the inventory, was not followed, rendering the seizure suspect and the remand order unsustainable. (Paras 10-15) B) Narcotic Drugs - Bail - Section 37 of NDPS Act - Twin Conditions - The petitioner sought bail under Section 37 of the NDPS Act, which imposes twin conditions: (i) the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty, and (ii) that he is not likely to commit any offence while on bail. The High Court, considering the non-compliance with Section 52A and the fact that the petitioner had no criminal antecedents, found that the conditions were satisfied and granted bail. (Paras 16-20) C) Arms Act - Offences under Sections 25 and 3 - Bail - The petitioner was also charged under Sections 25 and 3 of the Indian Arms Act, 1959, for possession of a country-made pistol. The court noted that the recovery of the pistol was also suspect due to procedural irregularities, and granted bail on the same terms. (Paras 21-22)
Issue of Consideration
Whether the order of remand passed by the Sessions Judge is sustainable when the mandatory provisions of Section 52A of the NDPS Act regarding sampling and disposal of seized contraband were not complied with, and whether the petitioner is entitled to bail under the stringent conditions of Section 37 of the NDPS Act.
Final Decision
The High Court allowed the writ petition, quashed the order dated 03.01.2022 passed by the Principal District and Sessions Judge, D.K., Mangalore, and directed the release of the petitioner on bail on such terms and conditions as the Sessions Judge may impose.
Law Points
- Section 52A of NDPS Act mandatory for sampling and disposal of seized contraband
- Section 37 of NDPS Act imposes twin conditions for bail
- Section 25 and 3 of Arms Act
- 1959
- Section 8(c) and 20(B)(ii)(c) of NDPS Act
