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2021 DIGILAW 697 (AP)

Regulla Sai Krishna v. State of Andhra Pradesh

2021-10-27

LALITHA KANNEGANTI

body2021
ORDER : The criminal petition is filed under Sections 437 & 439 of Cr.P.C seeking regular bail to the petitioners/A1 to A3 in connection with crime No.90 of 2021 of Kirlampudi Police Station, East Godavari District, registered for the offence punishable under Section 8 (c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”). 2. The case of the prosecution is that on 10.05.2021, on receiving credible information about illegal transportation of ganja, S.I. of Police, Kirlampudi Police Station along with mediators reached Krishnavaram Toll Plaza and while they were conducting vehicle check they observed that drivers of one cream color Ashok Leyland Mini van bearing registration No.AP 39 TN 8938 and red color car bearing No. AP 05 AN 3377 tried to turn the vehicles on seeing Police. A3 escaped from the spot but A1 and A2 were apprehended and on enquiry, they confessed that they were transporting ganja. Police seized 600 Kgs of ganja from their possession under mediators’ report and basing on the said report, the present crime is registered. A3 who escaped from the spot was arrested on 15.05.2021. 3. Learned Additional Public Prosecutor filed counter stating that A1 and A3 specifically confessed that they have transported ganja several times and A3 also confessed that crime No.150 of 2017 of Tuni Rural Police Station registered for offences under Sections 270, 417 and 498A of IPC and Sections 3 and 4 of D.P. Act and crime No.317 of 2019 registered by Eluru Rural Police Station registered for the offence under the NDPS Act are pending against him. Even according to the confession of A1, thrice he has transported ganja to Tamil Nadu along with A3. It is also stated that there is ample evidence against the petitioners to prove their guilt beyond reasonable doubt and as the petitioners herein earlier involved in similar offences, bar under Section 37 of the NDPS is applicable to them, as such they are not entitled for bail. 4. Heard Sri Medisi Ratna Rao, learned counsel for the petitioners and learned Additional Public Prosecutor for respondent-State. 5. Learned counsel for the petitioners submits that petitioners have no criminal antecedents and Police have completed investigation and recorded statements of important witnesses. He submits that the petitioners undertake to cooperate with investigation. 4. Heard Sri Medisi Ratna Rao, learned counsel for the petitioners and learned Additional Public Prosecutor for respondent-State. 5. Learned counsel for the petitioners submits that petitioners have no criminal antecedents and Police have completed investigation and recorded statements of important witnesses. He submits that the petitioners undertake to cooperate with investigation. He submits that petitioner Nos.1 and 2 were arrested on 10.05.2021 and petitioner No.3 was arrested on 15.05.2021 and since they have been languishing in jail, as such their case may be considered for grant of bail. 6. Learned Additional Public Prosecutor submits that investigation is completed and charge sheet is filed on 13.09.2021, but in view of the criminal antecedents against the petitioners, they are not entitled for bail. 7. It is appropriate to look at the language employed in Section 37 of NDPS Act, which reads thus: 37. Offences to be cognizable and non-bailable – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A 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. 8. In Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569 , the Hon’ble Apex Court has upheld Section 20 (8) of TADA Act, 1987 which has the same twin conditions to be applied to offences under TADA Act. The Hon’ble Apex Court observed thus: “349. 8. In Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569 , the Hon’ble Apex Court has upheld Section 20 (8) of TADA Act, 1987 which has the same twin conditions to be applied to offences under TADA Act. The Hon’ble Apex Court observed thus: “349. The conditions imposed under Section 20(8)(b), as rightly pointed out by the Additional Solicitor General, are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section. Similar to the conditions in clause (b) of sub-section (8), there are provisions in various other enactments such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the Customs Act to the effect that any authorized or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that "there are grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution. It was upheld on the ground that offences under TADA are most heinous and there is a compelling state interest in tackling such crimes, by way of which the vice of terrorism is sought to be tackled. 9. Coming back to the present case, Section 37 of NDPS Act mandates that while granting bail Court has to be satisfied that there are reasonable grounds for believing that the person seeking bail is not guilty of such offence and application of conditions mentioned in Section 37 (1)(b)(ii) be applicable only if the Public Prosecutor opposes the application. As per the language employed in the section, if the Public Prosecutor does not oppose the application, the Court need not apply its mind for arriving at conclusion despite the fact that the quantity is a commercial quantity. Secondly the provision gives unlimited discretion to the Public Prosecutor besides restricting the power of the Court to freely decide the question of bail to the accused. Secondly the provision gives unlimited discretion to the Public Prosecutor besides restricting the power of the Court to freely decide the question of bail to the accused. The Court is expected to be prima facie satisfied that the accused is not guilty of the offence, which is not possible to determine by the Court at the stage of bail and any observation of such kind poses a threat of prejudicing the case of accused before the trial Court. Further, as per the plain reading of the language employed in the section, the Court should be satisfied that there is no likelihood of accused committing any offence while on bail. Satisfying this condition or recording this condition appears to be impossible and impracticable as committing of an offence depends upon the mindset of the accused, mensrea and the Court at the stage of bail cannot assess and decide whether the accused is going to commit any offence or not in future. It is highly impossible for the Court to arrive at any of the conclusions that are supposed to be recorded at the time of granting bail by virtue of the conditions laid down under Section 37 (1) (b) (ii) of the NDPS Act. 10. The Hon’ble Apex Court in several cases has laid down the parameters how bails under the NDPS Act have to be dealt with and further interpreted the language employed in the provision. 11. In Satpal Singh Vs. State of Punjab, 2018 (13) SCC 813 the Apex Court has clearly observed that liberal approach in matters of bail under NDPS Act is uncalled for and held thus: “4. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. 12. Further in Union of India Vs. Ram Samujh and Ors., 1999 (9) SCC 429 the Hon’ble Apex Court held thus: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary. Union Territory of Goa [1990] 1 SCC 95 as under: "With deep concern, we may point out that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine," 8. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine," 8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that accused is not guilty of such offence; and (ii) that he is not likely to commit while on are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended. 13. In another case in Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798 the Hon’ble Apex Court has interpreted the word reasonable grounds as follows: “The expression used in Section 37 (1)(b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'.” 14. In the latest judgment of State of Kerala Vs. Rajesh in Criminal Appeal Nos.154-157 of 2020 dated 24.01.2020, the Hon’ble Apex Court considered the application moved by the State of Kerala, against grant of regular bail to the accused, without noticing the mandate of Section 37 (1)(b)(ii) of NDPS Act. The Apex Court held thus: 18. In the latest judgment of State of Kerala Vs. Rajesh in Criminal Appeal Nos.154-157 of 2020 dated 24.01.2020, the Hon’ble Apex Court considered the application moved by the State of Kerala, against grant of regular bail to the accused, without noticing the mandate of Section 37 (1)(b)(ii) of NDPS Act. The Apex Court held thus: 18. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. 20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” Accordingly, the Apex Court set aside the order passed by the High Court releasing the accused on bail. 15. In Ranjitsing Brahmajeetsingh Sharma Vs. State of Maharastra, (2004) 5 SCC 294, the Apex Court while considering Section 21 of Maharashtra Control of Organized Crime Act, 1999 where there are twin conditions pari materia with NDPS Act for grant of bail has held thus: “38. 15. In Ranjitsing Brahmajeetsingh Sharma Vs. State of Maharastra, (2004) 5 SCC 294, the Apex Court while considering Section 21 of Maharashtra Control of Organized Crime Act, 1999 where there are twin conditions pari materia with NDPS Act for grant of bail has held thus: “38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.” The Hon’ble Apex Court observed that while considering the bail petition despite the language employed in the section, court must develop a delicate balance between judgment of acquittal, conviction and bail and the provision should be construed reasonable. With regard to the second condition that the accused is not likely to commit the offence in future, it was observed that the court has to look into the antecedents of the accused as the court cannot predict his future conduct. 16. It is settled law that Court has to look at the material placed before it, but in the present case charge sheet is not filed before this Court and even as per the case of prosecution, there are no criminal antecedents insofar as petitioner Nos.1 and 2 are concerned but prosecution is solely basing on the confession made by petitioner No.1, wherein he stated that he along with petitioner No.3 transported ganja for three times. In Tofan Singh vs. State of Tamil Nadu, 2021 SCC Online SC 882 (crl.A.152 of 2013) the Hon’ble Apex Court held that confession before Police Officer in NDPS cases is hit by Section 25 of Indian Evidence Act, hence inadmissible and there cannot be any conviction. 17. In the facts of the case entire investigation was completed and police also filed the charge sheet. Nothing is placed on record to show that petitioners 1 and 2 have criminal antecedents. As far as 3rd petitioner is concerned, it is stated that Crime No.317 of 2019 was registered on the file of Eluru Rural Police Station, under the NDPS Act. 18. Accordingly, the criminal petition is partly allowed. Nothing is placed on record to show that petitioners 1 and 2 have criminal antecedents. As far as 3rd petitioner is concerned, it is stated that Crime No.317 of 2019 was registered on the file of Eluru Rural Police Station, under the NDPS Act. 18. Accordingly, the criminal petition is partly allowed. Petitioner Nos.1 and 2/A-1 and A-2 shall be enlarged on bail in connection with crime No.90 of 2021 of Kirlampudi Police Station, East Godavari District on execution of self bond for Rs.6,00,000/-(Rupees six lakhs only) each with two sureties for a like sum each to the satisfaction of the learned Judicial Magistrate of First Class, Prathipadu. Petitioner Nos.1 and 2 shall not leave the state and they shall appear before the Station House Officer, Kirlampudi Police Station, once in a week till completion of trial. Bail petition against petitioner No.3/A3 is dismissed. As a sequel, all the pending miscellaneous applications are closed.