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2014 DIGILAW 619 (AP)

Chepuri Nageswara Rao v. Station House Officer

2014-05-08

M.SATYANARAYANA MURTHY

body2014
ORDER M. Satyanarayan A. Murthy, J. 1. "This Criminal Petition, under Section 438 of the Code of Criminal Procedure 1973 (For short, 'the Cr.P.C.') is filed by the petitioners/A-4 and A-6 seeking to grant pre-arrest bail, since they are apprehending arrest in connection with Crime No. 136 of 2013 of the Rolugunta Police Station, Visakhapatnam District, for the offences punishable under Sections 20(b) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short, 'the Act'). The case of the prosecution is that, the petitioners along with others allegedly possessed 540 Kgs of 'ganja'. 2. The main contention of the petitioners/A-4 and A-6 is that no recovery was made directly from the petitioners and basing on the confessional statement of the prime accused, they were implicated. 3. The learned Public Prosecutor opposed the petition. 4. As seen from the material available on record, no recovery took place directly from the petitioners. However, it is totally based on the confessional statement of the co-accused, the petitioners were also implicated. 5. The main apprehension of petitioners/A-4 and A-6 is that, police may arrest them in connection with above crime. Of course, as a part of investigation, if there is any possibility of interfering with investigation by petitioners/A-4 and A-6 or to collect important material, police may arrest petitioners/A-4 and A-6 as a part of investigation, but that by itself is not a ground to grant pre-arrest bail to petitioners/A-4 and A-6. 6. Grant of pre-arrest bail is not a matter of course, it is a matter of exception. Unless some exceptional circumstances are shown, the petitioners cannot be enlarged on pre-arrest bail, as per settled law laid down by the Hon'ble Apex Court in State of Maharashtra v. Mohd. Sajid Husain AIR 2008 SC 1551, wherein the Apex Court laid down the following guidelines for grant of anticipatory bail: "1. The nature and gravity or seriousness of accusation as apprehended by the applicant; 2. The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence; 3. The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and 4. The possibility of the appellant, if granted anticipatory bail, fleeing from justice." 7. The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and 4. The possibility of the appellant, if granted anticipatory bail, fleeing from justice." 7. In another decision reported in Siddharam Satlingappa Mhetre v. State of Maharashtra and others 2011 (1) ALT (Crl.) 69 (SC) : 2011 (1) SCJ 36 : 2011 Crl. L.J. 3905, the Hon'ble Apex Court held as follows: "The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the facts as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accuser's likelihood to repeat similar or the other offences; (v) Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in case of large magnitude affecting a very large number of people; (vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The Court must also clearly comprehend the exact role of the accused in the case. The case in which accused is implicated with the help of Section 34 and149 of IPC, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The Court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 8. Narcotic Drugs and psychotropic Substances Act, is a special enactment and complete code specifying special procedure for investigation and trial of the offences under the Act, so also procedure for grant of bail and pre-arrest bail. "Section 371(1)(b) and (2) of the Act reads as follows: "(b). No person accused of an offence punishable for the offences under Section 19 or 24 or 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 2. The limitations on granting of bail specified in clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail." 9. 2. The limitations on granting of bail specified in clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail." 9. Thus, in view of Section 37 of the Act, if the Court is satisfied that there are reasonable grounds for believing the petitioners/accused are not guilty of such offence and not likely to commit similar offence while on bail, the Court may grant bail subject to requirements under the provisions of Cr.P.C. Therefore, the satisfaction of the Court is mandatory to grant bail or decline bail to the petitioners/accused in view of the decision of the Apex Court in Superintendent, Narcotics Central Bureau, Chennai v. R. Paulsamy 2001 Crl. L.J. 117 (SC). 10. It is settled principle of law that an application for pre-arrest bail could be considered without detailed description of evidence and elaborate documentation of merits was to be avoided. Thus, no party had impression that his case was prejudged. Existence of prima facie case alone shall be considered rather than elaborate analysis or exhaustive exploration of merits. Hence, question of grant of bail in offences of serious nature could be decided keeping in view the nature and seriousness of such offence, character of evidence and larger public interest. 11. Courts shall exercise their power judiciously and reliefs granted by them shall be logical and tenable within framework of law, as held by the Apex Court in Vaman Naraih Ghiya v. State of Rajasthan AIR 2009 SC 1362 . 12. In the instant case on hand, there is no direct recovery of contraband from the petitioners. Considering the facts and circumstances of the case, I find that it is a fit case to enlarge the petitioners on pre-arrest bail. In the result, the Criminal Petition is allowed. The petitioners-A-4 and A-6 shall surrender before the Additional Judicial Magistrate of First Class, Narsipatnam, Visakhapatnam District, within two (2) weeks from today. On such surrender, the learned Additional Judicial Magistrate of First Class, Narsipatnam, Visakhapatnam District, shall enlarge the petitioners-A-4 and A-6 on bail on a bond of ` 20,000/- (Rupees twenty thousand only) each within two sureties in a likesum each to his satisfaction."