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2024 DIGILAW 487 (AP)

Killo Nageswara Rao v. State of Andhra Pradesh

2024-04-23

T.MALLIKARJUNA RAO

body2024
ORDER : (T. Mallikarjuna Rao, J.) 1. This Criminal Petition, under Sections 438 of Cr.P.C., has been filed by the petitioner/A2, seeking anticipatory bail, in Crime No.180 of 2021 of Pithapuram Rural Police Station, East Godavari District. 2. A case has been registered against the petitioner herein and others for the offences punishable under Sections 20(b)(ii)(B), 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). 3. The Prosecution's case, in brief, is that on 20.10.2021 at about 06.00 p.m., on receiving credible information about illegal transportation of ganja, the SI of police Pithapuram Rural Police Station rushed to Marvadi shed, state highway no:173 at Jalluru village, Pithapuram Mandal and at about 02.00 pm, while they were conducting vehicle search, they observed one white coloured Mahindra Bolero Car bearing No.AP05 BL 5979 was coming from Samalkota side towards Pithapuram side, stopped at some distance from the police party and tried to turn back the Car, Police party chased the car, at that time, four persons got down the car and fled away towards western side fields and the car driver i.e., A.1 also tried to escape from the scene of offence and the Police apprehended him and seized Ganja of about 2.675 grams, one cell phone with Sim, cash of Rs.20,000/- and while coloured Mahindra Bolero car from the possession of A.1 under the cover of mediators report and recorded the A.1's confession statement, who issued the mobile Nos. 89859 96701 and 63059 69690 of A.2. Based on the mediators' report, the case in above crime was registered against the Petitioner and other Accused persons. 4. Learned counsel for the Petitioner contends that even according to the case of the prosecution, the petitioner herein was not apprehended at the scene of offence and the present case was registered against the petitioner based on suspicion; the alleged contraband is not commercial quantity; the Petitioner is breadwinner of the family and his presence is very much required and there is no requirement of his presence for custodial interrogation; entire investigation has completed. 5. Learned Assistant Public Prosecutor has filed a counter affidavit, contending that A.1 has confessed that they seized ganja was purchased from Petitioner/A.2. During the investigation, the officer secured the CDRs of A.1, wherein, it is clear that Petitioner/A.2 is in continuous touch with A1. 5. Learned Assistant Public Prosecutor has filed a counter affidavit, contending that A.1 has confessed that they seized ganja was purchased from Petitioner/A.2. During the investigation, the officer secured the CDRs of A.1, wherein, it is clear that Petitioner/A.2 is in continuous touch with A1. Learned Assistant Public Prosecutor further submits that the Petitioner/A.2 is also involved in two other NDPS cases, two attempt to murder cases, IA Act, and one security case under section 108 of Cr.P.C in Visakha Agency Area. In support of the same, copies of the CDRs and F.I.R., are also placed. Learned Assistant Public Prosecutor further submits that he is a habituated offender; the investigation is at a crucial stage, and a charge sheet has not yet been filed. Hence, he prayed to dismiss the anticipatory bail application. 6. I have heard both sides. Learned counsel on both sides reiterated their submissions on par with the contentions presented in the petition as well as in the counter-affidavit. 7. It is trite law that the power to grant a pre-arrest bail under Section 438 of the Cr.P.C., is extraordinary in nature and is to be exercised sparingly. Thus, pre-arrest bail cannot be granted in a routine manner. The Hon'ble Apex Court, adverting to its previous precedents, has discussed the parameters to be considered while considering pre-arrest bail applications, in the case of State of P. v. Bimal Krishna Kundu, (1997) 8 SCC 104 , has held as under: "8. A three-Judge Bench of this Court has stated ip Pokar Ram v. State of Rajasthan [ (1985) 2 SCC 597 : 1985 SCC (Cri) 297 : AIR 1985 SC 969 ] : (SCC p. 600, para 5) "5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal." 9. Similar observations have been made by us in a recent judgment in State v. Anil Sharma [ (1997) 7 SCC 187 : 1997 SCC (Cri) 1039 : JT (1997) 7 SC 651] : (SCC pp. Similar observations have been made by us in a recent judgment in State v. Anil Sharma [ (1997) 7 SCC 187 : 1997 SCC (Cri) 1039 : JT (1997) 7 SC 651] : (SCC pp. 189-90, para 8) "The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest." xxxxxxxxxxxx 12. We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in favour of granting anticipatory bail to the respondents. It is disquieting that implications of arming the respondents, when they are pitted against this sort of allegations involving well-orchestrated conspiracy, with a pre-arrest bail order, though subject to some conditions, have not been taken into account by the learned Single Judge. We have absolutely no doubt that if the respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Public interest also would suffer as a consequence. Having apprised himself of the nature and seriousness of the criminal conspiracy and the adverse impact of it on "the career of millions of students", learned Single Judge should not have persuaded himself to exercise the discretion which Parliament had very thoughtfully conferred on the Sessions Judges and the High Courts through Section 438 of the Code, by favouring the respondents with such a pre-arrest bail order." 8. The learned counsel for the Petitioner/A.2 submits that the initiation of the proceedings against the Petitioner was premature and the Petitioner has been falsely roped in the present case merely based on the confessional statement of the A.1; there is no incriminating evidence against the Petitioner; the Petitioner did not meddle with the investigation; the Petitioner has no link with the said co-accused persons and the Investigation authorities have not collected any independent material showing the Petitioner's involvement in the commission of the offence. 9. Learned Assistant Public Prosecutor contends that the investigation could not be completed, as the Petitioner absconded; the contention that confessional statement is a weak piece of evidence cannot be taken at this stage, and in the event, the Petitioner is granted pre-arrest bail, he may not cooperate with the investigation and may threaten the witnesses. 10. 9. Learned Assistant Public Prosecutor contends that the investigation could not be completed, as the Petitioner absconded; the contention that confessional statement is a weak piece of evidence cannot be taken at this stage, and in the event, the Petitioner is granted pre-arrest bail, he may not cooperate with the investigation and may threaten the witnesses. 10. Learned Assistant Public Prosecutor further contends that during the investigation, the investigating officer secured the CDRs of A.1 (Cell No.94910 68204); the CDRs reveal that the Petitioner/A.2 is in continuous touch with A.1 which clearly shows the nexus between them. A copy of the CDRs is placed along with the counter to support the contention. 11. In the present case, the alleged recovery of 2.675 kg of Ganja was effected by possessing the co-accused is a non-commercial quantity. Learned Assistant Public Prosecutor further contends that the Petitioner's request may not be considered. As seen from the record, there are specific allegations against the Petitioner that he, along with co-accused persons, were indulging in transporting and selling Ganja. 12. It is noted that the co-accused has been arrested and he has made specific allegations against the Petitioner in his confessional statement. It is relevant to note that the statement of the co-accused is to be tested at the time of trial. No reason has also been pleaded as to why the co-accused would try to falsely implicate the Petitioner. 13. It is erroneous to say that a confessional statement made by the accused during interrogation cannot be considered or looked into to connect the "other co-accused. Such disclosure statement of co-accused can certainly be taken into consideration for providing a lead in the investigation and even during trial it is admissible under Section 30 of the Indian Evidence Act. 14. Section 30 of the Indian Evidence Act provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. 15. No contraband was doubtless recovered from the Petitioner's possession. 15. No contraband was doubtless recovered from the Petitioner's possession. Still, per the learned Assistant Public Prosecutor's contention, Petitioner/A.2 is the prime Accused and is also involved in other two NDPS cases, two attempt to murder cases and one security case under section 108 of Cr.P.C., in Visakha agency area etc. The investigation in this case still needs to be completed. The Petitioner still needs to be apprehended. Still, the investigation agency must collect evidence of the Petitioner's involvement in the alleged offence. In case the Petitioner is released on bail, there is every possibility of interfering with the further investigation. 16. At this stage, while dealing with a bail application, this Court cannot overlook the complicity of the Petitioner in terms of section 10 of the Evidence Act. In case of a conspiracy, conduct and/or communication between the conspirators as evident from call detail records are relevant under Section 10 of the Evidence Act to prove the factum of conspiracy. This Court views that call details report is one of the prima facie grounds on the Petitioner's involvement in the alleged offence. As observed earlier, the probative value of the evidence will be taken by the learned Trial Court at the stage of trial. 17. "The material placed on record shows that the Petitioner was in regular touch with the co-accused. Section 65B of the Evidence Act deals with admissibility of the electronic records. Production of a certificate under section 65-B(4) of the Evidence Act may be a necessary safeguard to ensure the authenticity of the record. But that may be done at any stage of the trial at the instance of the trial Court either by directing the production of a certificate under section 65-B(4) of the Evidence Act or even by summoning the person having possession of a laptop/tab/mobile, where the electronic record is stored, to the witness box. This Court is not called upon to evaluate evidence at the stage of consideration of grant of bail. 18. The Hon'ble Apex Court, in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 , held that a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence. However, it is relevant to observe that the Court is considering applications under Section 438 of the Cr.P.C., for pre- arrest bail. 18. The Hon'ble Apex Court, in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 , held that a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence. However, it is relevant to observe that the Court is considering applications under Section 438 of the Cr.P.C., for pre- arrest bail. The applicants will be entitled to the benefit of the said judgment, in the opinion of this Court, after the investigation is completed and the charge sheet is filed. 19. The Hon'ble Apex Court in the case of State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, has held as under: "4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was effected from the respondents and that they had been implicated only on the basis of the disclosure statement of the main accused Dinesh Kumar. Therefore, reliance was placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 . xxxxxxxxxxxx 8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. 9. To grant anticipatory bai/ in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents." 20. In an Appeal filed against the granting of anticipatory bail for the offences punishable under Sections 8(c), 20(b)(ii)(c) and 29(1) of the NDPS Act, the Hon'ble Supreme Court held in State by the Inspector of Police v. B. Ramu, CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Crl.) No(s). 8137 of 2022) that: 11. In case of recovery of such a huge quantity of narcotic substance, the Courts should be slow in granting even regular bail to the accused what to talk of anticipatory bail more so when the accused is alleged to be having criminal antecedents. 12. OF 2024 (Arising out of SLP(Crl.) No(s). 8137 of 2022) that: 11. In case of recovery of such a huge quantity of narcotic substance, the Courts should be slow in granting even regular bail to the accused what to talk of anticipatory bail more so when the accused is alleged to be having criminal antecedents. 12. For entertaining a prayer for bail in a case involving recovery of commercial quantity of narcotic drug or psychotropic substance, the Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act. 21. It is settled law that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Cr.P.C. The Hon'ble Apex, in the case of State V. Anil Sharma, (1997) 7 SCC 187 , has also underlined the importance of custodial interrogation as under: "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre- arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. xxxxxxxxxxxx 8. The above observations are more germ"ane(sic) while considering an application for post-arrest bail. The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. xxxxxxxxxxxx 8. The above observations are more germ"ane(sic) while considering an application for post-arrest bail. The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate the learned Single Judge ought not to have side-stepped the apprehension expressed by the CBI (that the respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during which he held such office." 22. Considering the grave nature of the offence and the allegations levelled against the Petitioner, this Court views that the custodial interrogation of the Petitioner/Accused is required in this case for proper and just investigation of this case. The counter affidavit shows that the Petitioner is alleged to have criminal antecedents. The material on record also shows that the Petitioner was in conversation/contact with the arrested co-accused through the mobile phone. This shows the nexus between the Petitioner and the other co-accused and the conspiracy between them. The offence alleged to be committed by the Petitioner/Accused is against the society, and thus, considering all the attending facts and circumstances of the case as well as the gravity of the offence, as also the settled principle of law that power of grant of bail under Section 438 Cr.P.C., is to be sparingly exercised in extraordinary circumstances. Thus, the implication of the Petitioner prima facie cannot be said to be without justification. Thus, no such circumstances have been made out in this case, and this Court does not find it a proper case for granting the relief of anticipatory bail to the Petitioner. Therefore, without commenting on the merits of the case, lest it may prejudice the case of either of the parties, the anticipatory bail application of Petitioner is liable to be dismissed. 23. In the result, the Criminal Petition is dismissed.