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2019 DIGILAW 8 (AP)

Suksen Mandal v. State of Andhra Pradesh

2019-01-30

T.RAJANI

body2019
ORDER : T. RAJANI, J. 1. This petition is filed, under Sections 437 and 439 of the Criminal Procedure Code, 1973, seeking to enlarge the petitioner, who is A4, on bail in Crime No. 60 of 2017 on the file of the Station House Officer, Chinturu Police Station, East Godavari District. The offences alleged are under Section 8(c) read with 20(b)(ii)(c) of NDPS Act. 2. Heard the Counsel for the petitioner and the Public Prosecutor appearing for the respondent. 3. The case of the prosecution is that 135 Kgs. of Ganja is involved in this case and that this petitioner is acting as a mediator for purchase of Ganja. Hence, Section 37 of the NDPS Act comes in the way of granting bail to the petitioner as one of the two conditions for granting bail is the satisfaction of the Court that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit offence while on bail. 4. As regards this hurdle, the Counsel raised a technical argument based on the fact that the complainant and the Investigating Officer in this case are the same and hence, there is every likelihood of he being acquitted from the case. He relies on a judgment of the Supreme Court passed in Crl. A No. 1880 of 2011 between Mohan Lal and the State of Punjab, wherein the Supreme Court held that, 'a fair investigation which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. The said judgment was passed in an appeal. Hence, the Apex Court deemed it appropriate to hold that the prosecution is vitiated. 5. On the other hand, the Public Prosecutor relies on a judgment of this Court, dated 14.11.2018, passed in Crl. P Nos. 6901, 6918 and 6928 of 2018, wherein this Court by considering the said fact and also by relying on the judgment of the Supreme Court referred supra, set aside the cognizance orders of the Court and reverted the clock back to the crime registration stage and directed the Superintendent of Police concerned to handover the investigation to another police officer other than the person who conducted the raid and detected the crime and registered the FIR. 6. 6. In view of the above, it cannot be said that the petitioner would be entitled for acquittal and hence, Section 37 of the NDPS Act does not come in the way of granting bail to the petitioner. Moreover, what this Court can understand from the language used in Section 37(1)(b)(ii) is that the reasonable grounds should be in respect of believing that the accused is not guilty but not that he would be acquitted. However, the Counsel for the petitioner makes an alternative prayer for granting interim bail to the petitioner on the ground that his wife is suffering from spine problem and that his presence for fixing up surgery to his wife is very much necessary. 7. Considering the above circumstances, this Court opines that this is a fit case for granting interim bail to the petitioner. 8. With the above observations, the criminal petition is disposed of and the petitioner is enlarged on interim bail for a period of 30 days starting from 31.1.2019 subject to the condition of his executing a personal bond for a sum of Rs. 20,000/- (Rupees Twenty thousand only) with two sureties for a like sum each to the satisfaction of the I Additional District and Sessions Judge, East Godavari at Rajamahendravaram. It is made clear that the petitioner shall surrender before the concerned State House Officer on 1.3.2019 without fail. 9. As a sequel, the miscellaneous applications, if any pending, shall stand closed.