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2024 DIGILAW 1372 (AP)

Namdeo Ashruba Nakade v. Union of India

2024-09-26

V.R.K.KRUPA SAGAR

body2024
ORDER : V.R.K. Krupa Sagar, J. This Criminal Petition under Sections 480 and 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 437 and 439 of Cr.P.C) filed by the petitioner/accused to grant regular bail in S.C.No.144 of 2024 pending on the file of the learned II Additional District and Sessions Judge-Cum-Designated Court for the trial of offences under NDPS Act, Vijayawada, registered for the offence under Section 8(c) read with 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances, Act 1985 (for short, ‘the NDPS Act’). 2. Heard arguments of Sri D.Surya Narayana, the learned counsel for petitioner and Smt. Santhi Chandra, the learned Senior Standing Counsel for DRI and DGGI appearing for respondent. 3. The allegation against the petitioner was that on 07.11.2023 at about 12:00 hours, on receiving credible information about illicit transportation of Cannabis also known as Ganja, a Narcotic Drug, the officers of the Directorate of Revenue Intelligence went to Enikepadu Junction, Vijayawada and mounted surveillance on the vehicles coming from the direction of Eluru. 4. It is alleged that the petitioner drove the lorry in which alleged contraband 731.075 kgs of brown leafy material alleged to be Ganja was found from the cavities in the trolly of lorry bearing No.MH 20 CT 6823 and the same was seized under the cover of panchanama. On completing the panchanama proceedings, the petitioner’s statement was recorded under Section 67 of the NDPS Act and he was arrested and produced before the learned IV Additional Chief Metropolitan Magistrate, Vijayawada and was remanded to judicial custody on 08.11.2023. On completion of investigation, respondent filed complaint/charge sheet. 5. Later the petitioner approached the Court of the Metropolitan Sessions Judge-cum-Special Judge for trail of NDPS Act cases, Vijayawada for grant of bail in Crl.M.P.No.7 of 2024 and the same was dismissed on 02.02.2024 stating that the accusation made against the petitioner/accused is prima facie well-founded and the quantity of contraband found was commercial quantity. 6. Aggrieved by the order, the petitioner filed the present criminal petition to grant bail and to be released on bail. 7. The following points are urged in bail petition : The documents which are produced under Section 42 of the NDPS Act is a clear violation and coupled with several procedural lapses, which resulted in severe prejudice to the petitioner. Aggrieved by the order, the petitioner filed the present criminal petition to grant bail and to be released on bail. 7. The following points are urged in bail petition : The documents which are produced under Section 42 of the NDPS Act is a clear violation and coupled with several procedural lapses, which resulted in severe prejudice to the petitioner. The Investigating Agency flouted the law laid down by the Hon’ble Apex Court in Thana Singh v. Central Bureau of Narcotics, 2013 (2) SCC 590 and did not supply a copy of lab report to the petitioner. The Investigating Agency flouted the settled law laid down in Mohan Lal v. The State of Punjab, AIR 2018 SC 3853 that soon after the seizure the samples are to be drawn but whereas in this case there is inordinate delay in drawing the sample. Rule-14 of the NDPS Act has been flouted which resulted in illegality. Section 37 of the NDPS Act is not applicable to the facts of the case as the search and seizure creates ample room of doubt and violation of the settled law and will not give scope to the Court to reasonably believe the guilt of the petitioner. The petitioner is a law abiding citizen and is innocent and was never in conscious possession of the contraband. Petitioner has family and old parents who are dependent on him and to be looked after by him. 8. For respondent, a detailed counter affidavit responding to the facts and the contentions raised in the petition is filed. The counter affidavit further mentions the compliance of statute and the rules and cites precedent as to why bail in this case may not be granted. 9. The two principal submissions raised on behalf of the petitioner are that the petitioner has been in judicial custody for quite a long time and the investigation stood completed and awaiting trial. It is urged that the mandate in Section 37 of the NDPS Act that to grant bail the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail has to be considered pragmatically. It is urged that the mandate in Section 37 of the NDPS Act that to grant bail the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail has to be considered pragmatically. In elaboration the learned counsel points out a similar provision in Maharashtra Control of Organised Crime Act (30 of 1999) and the ruling of the Hon’ble Supreme Court of India in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 . Their Lordships in the cited ruling considered the basic principles contained in Article 21 of the Constitution of India to evaluate the provision of that nature and were pleased to hold that there is no machinery available to the Court to ascertain that once the accused was enlarged on bail, he would not commit any offence whatsoever and that if the Court having regard to the material brought on record is satisfied that in all probability the accused may not be ultimately convicted and in such cases an order granting bail may be passed. It was further held that the Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether the accused was possessed of the requisite mensrea. Learned counsel further cited Naresh Kumar @ Nitu v. The State of Himachal Pradesh, AIR 2017 SC 3859 . That was a case where two kilograms of Charas was allegedly found in possession of the accused as it was recovered from his bag. After referring to various provisions of the NDPS Act, their Lordships found that the evidence on record did not establish the foundational facts of possession of contraband. In was in that regard, their Lordships acquitted the accused. 10. This Court has considered the rival submissions and the facts on record. The facts as alleged would indicate that the petitioner/accused is the very owner-cum-driver of the vehicle. The vehicle was found modified as under its trailer false cavities were created within which the huge quantity of Ganja was stored thereby making that one could not see anything on the trailer of the lorry. The seizure was made in the presence of independent witnesses. The vehicle was found modified as under its trailer false cavities were created within which the huge quantity of Ganja was stored thereby making that one could not see anything on the trailer of the lorry. The seizure was made in the presence of independent witnesses. Thus, it is a case where one cannot say that there are no foundational facts indicating conscious possession of contraband by the petitioner. It may also be noticed that the learned Metropolitan Sessions Judge-cum-Special Judge for trial of NDPS Cases, Vijayawada observed that there is nothing on record indicating that the petitioner is not guilty of committing the offence is an observation that cannot be said to be inaccurate in any manner. Therefore, this contention of the petitioner is negatived. 11. The other principal contention raised on behalf of the petitioner by the learned counsel is based on Sections 41 and 42 of the NDPS Act and the ruling cited in this regard in Smt. Najmunisha v. The State of Gujarat, 2024 INSC 290 . The facts in this regard are to be noticed as per paragraph Nos.2 and 3 of the complaint/charge sheet filed by the respondent. “2. The gist of intelligence was filed by Shri Shishir Dhangar, Senior Intelligence Officer, DRI, Regional Unit, Vijayawada (L.W.01) and reported the gist of intelligence to his Superior Official Shri M. Sahas Surya, Deputy Director, (L.W.02) vide Intelligence Note dated 07.11.2023 in compliance with Section 42 of the Act. L.W.01 on 07.11.2023, as per the directions of L.W.02, handed over the gist of intelligence to Shri Pavan Sri Jagannadh Saladi, Intelligence Officer, DRI, Vijayawada (L.W.03) to take necessary action. 3. It is submitted that L.W.03, along with team of officers and two witnesses i.e., Sri Digamarthi Sudheer (L.W.04) and Sri Bandlamudi Sudhakar (L.W.05) gathered at Enikepadu Junction, Vijayawada, Andhra Pradesh and mounted surveillance on the vehicles coming from the direction of Eluru. At about 11.30 hrs, the subject vehicle bearing registration No.MH 20 CT 6823 was spotted and intercepted. The vehicle was found to be a 40 feet TATA Truck trailer as shown in the image below.” 12. At about 11.30 hrs, the subject vehicle bearing registration No.MH 20 CT 6823 was spotted and intercepted. The vehicle was found to be a 40 feet TATA Truck trailer as shown in the image below.” 12. According to the learned counsel for petitioner, what was done by the respondent in the above manner is in contravention of Sections 41 and 42 of the NDPS Act and there was sub-delegation which is invalid and that LW.3 himself has no information and no prior knowledge and therefore, this Court has to favourably consider the plea of the accused. 13. Having bestowed attention to the submissions made on the given facts of the case, it has to be necessarily state that even if the alleged rules are assumed to have been overlooked by the respondent that by itself has not resulted in any prejudice. Serious deliberations on this aspect of the law would unnecessarily cause prejudice to the contentions on both sides in the trial of the case. From the record it is clear that the intelligence note was made on receipt of credible information wherein all the requisite details were mentioned and the intelligence note was sent to the superior officers and it was only thereafter the team proceeded to the scene of offence. All this seems to be in compliance with the cited provisions. In the given facts it would not be said to be a case of any invalid delegation of powers. In fact these provisions do permit entrustment of work to the subordinate officers and that is noticed in the cited ruling also. It is for these reasons this Court finds no merit in this contention. 14. In the above referred circumstances, this Court finds that this is not the stage to consider his bail plea. 15. In the result, this Criminal Petition is dismissed.