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2022 DIGILAW 766 (TS)

Sidhantha Dole v. State of Telangana

2022-11-30

C.SUMALATHA

body2022
JUDGMENT CHILLAKUR SUMALATHA, J. - Heard Sri T.Chaitanya Kumar, learned counsel for the petitioner as well as the learned Additional Public Prosecutor who is representing the Respondent. 2. Seeking the Court to enlarge the petitioner, who is arrayed as Accused No.1 in S.C.No.242 of 2022, on the file of the Court of Special Sessions Judge for trial of cases under NDPS Act, Kothagudem, on bail, the present Criminal Petition is filed. 3. Making his submission, learned counsel for the petitioner contended that the petitioner has not committed any offence and the allegation that the petitioner was found in possession of 220 Kgs of Ganja is false. Learned counsel further submitted that the petitioner is implicated in a false case and he is in judicial custody since February 2022 and as he is a law abiding citizen and is a student, he may be enlarged on bail. 4. On the other hand, the submission of the learned Additional Public Prosecutor is that huge quantity of Ganja was seized from the possession of the petitioner and as the contraband seized has far exceeded the commercial quantity, he is not entitled for bail. 5. The facts of the case in brief as could be perceived through the contents of the charge sheet are that, on 22/2/2022, as per the instructions of his superior officers, the Sub-Inspector of Police, Dummugudem, was performing vehicle checking at the outskirts of Chinna Nallaballi Village and at about 2:30 AM, he noticed one car without registration number coming from Bhadrachalam side. Police party tried to stop the car, but the car driver moved forward. Police party chased the car and stopped the car. But the persons present therein did not give proper answers. When the car was checked, police found some parcels. Police party smelled the sealed parcels and confirmed that those parcels contains Ganja. On that, the persons present therein were taken into custody. Mediators were summoned and the statements of those persons were recorded in the presence of the mediators. Police seized 110 packets which contain 220 Kgs 400 gms of Ganja which costs approximately 44, 08, 000/-. One of those persons is the petitioner herein. 6. Thus, as per the version of the prosecution, the petitioner committed the offence punishable under Sec. 8(c) r/w.20(b) of NDPS Act. 7. Police seized 110 packets which contain 220 Kgs 400 gms of Ganja which costs approximately 44, 08, 000/-. One of those persons is the petitioner herein. 6. Thus, as per the version of the prosecution, the petitioner committed the offence punishable under Sec. 8(c) r/w.20(b) of NDPS Act. 7. The legal position is more than well settled that apart from Sec. 439 Cr.P.C., Sec. 37 of the NDPS should also be taken into consideration by the Court while granting bail when the case falls within the ambit of Sec. 37(b) of NDPS Act. Sec. 37 of NDPS Act reads as under:- "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 offences under Sec. 19 or Sec. 24 or Sec. 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-sec. (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. By the contents of Sec. 37(2) of the NDPS Act, it is clear that the limitations of granting bail specified in Sec. 37(1)(b) are in addition to the limitations under the Code of Criminal Procedure. It is not in dispute that the contraband involves commercial quantity. Thus, it is incumbent on part of the Court to give an opportunity to the Public Prosecutor. Also, where the Public Prosecutor opposes the application, the Court should be satisfied that there are reasonable grounds for believing that the person who sought for bail is not guilty of such offence and is not likely to commit any offence while on bail. Also, where the Public Prosecutor opposes the application, the Court should be satisfied that there are reasonable grounds for believing that the person who sought for bail is not guilty of such offence and is not likely to commit any offence while on bail. Thus, two conditions have to be satisfied which are as follows:- Firstly, that there are reasonable grounds for believing that the applicant is not guilty of such offence as provided under Sec. 37(b) of NDPS Act. Secondly, that he is not likely to commit any offence while on bail. 9. When a case came up before the Hon'ble Supreme Court wherein grant of bail to the accused was questioned by the customs authorities, which purportedly recovered huge quantity of Diazepam 5mg tablets, summarizing the legal position, in the said case, i.e. in the case between Customs, New Delhi Vs. Ahmadalieva Nodira, (2004) 3 SCC 549 . the Court held as follows:- "The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. 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. In the case at hand the High Court seems to have completely overlooked the underlying object of Sec. 37. It did not take note of the confessional statement recorded under Sec. 67 of the Act." 10. Also, discussing about the legislative intent and that the said legislative intent should be borne in mind while granting bail in NDPS cases, the Hon'ble Apex Court in the decision between UNION OF INDIA Vs. RAM SAMUJH AND ANR, 1999 Supp(2) SCR 76. It did not take note of the confessional statement recorded under Sec. 67 of the Act." 10. Also, discussing about the legislative intent and that the said legislative intent should be borne in mind while granting bail in NDPS cases, the Hon'ble Apex Court in the decision between UNION OF INDIA Vs. RAM SAMUJH AND ANR, 1999 Supp(2) SCR 76. held as follows:- "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 Gua. (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 Sec. 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", 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 Sec. 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. are satisfied. The High Court has not given any justifiable reasons for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail... ... ..." 11. Having regard to the aforementioned legal position, this Court is of the view that the request of the petitioner cannot be honoured. Admittedly, as per the version of the prosecution, a huge quantity of 220 Kgs 400 grams of Ganja was seized from the possession of the petitioner herein. 12. Resultantly, the Criminal Petition is dismissed.