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2025 DIGILAW 445 (TS)

Deepak Bhagat v. Union of India

2025-04-28

J.SREENIVAS RAO

body2025
ORDER : J.SREENIVAS RAO, J. This application is filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) by the petitioner/accused No.6, seeking bail in NDSC No.71 of 2023 on the file of I Additional District and Sessions Judge, Medchal Malkajgiri District at Kushaiguda (F.No.DRI/HZU/48D/ENQ-48 (INT-39)/2022, of Directorate of Revenue Intelligence, Hyderabad Zonal Unit registered for the offence punishable under Sections 22, 23, 27-A, 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). 2. The case of prosecution in brief is that on 21.12.2022, the team of officers visited Plot No. 6P, Chengicherla, Telangana, and found a shed where six individuals i.e. accused Nos.3 to 8 were involved in the illicit manufacturing of Mephedrone. The officers discovered various equipments including reactors, filtration units, and drying machines, along with raw materials and semi-finished Mephedrone in different forms. Upon questioning, the suspects admitted to manufacturing Mephedrone for sale. Accused No.2, who arrived during the raid, revealed that he supplied raw material and facilitated the acquisition of the premises. Accused No.2 also mentioned his connection with accused No.1, who financed the operation through hawala channels. The suspects used vehicles, including a TVS Jupiter and an Isuzu D-Max, to transport both raw materials and the finished Mephedrone for distribution, with accused No.1 coordinating deliveries. Total 136.275 Kgs of Mephedrone was seized. It is further submitted that the Senior Intelligence Officer, Directorate of Revenue Intelligence, Zonal Unit, Hyderabad, has registered the crime for the aforementioned offences. 3. Heard Sri P.Vishnuvardhana Reddy, learned counsel for the petitioner and Sri Dominic Fernandes, learned Special Public Prosecutor appearing on behalf of respondent-State. 4.1 Learned counsel for the petitioner submitted that the petitioner has not committed any offence and the petitioner was not in possession of the alleged contraband, which was seized from the premises of accused No.1. The petitioner was falsely implicated in the present crime as accused No.6 only basing on the confession statement given by accused No.1 and the alleged confession statement recorded by the police under Section 67 of the NDPS Act is inadmissible as evidence incriminating the petitioner and that the ingredients of 22, 23, 27-A, 28 and 29 of the NDPS Act are not attracted against the petitioner. The police seized the contraband i.e. raw material only and not Mephedrone and without sending the said contraband to the clinical test, the Investigating Officer has treated the said contraband as Mephedrone. 4.2 He further submitted that the police have not followed the mandatory procedure as contemplated under the provisions of Sections 42 and 50 of the NDPS Act while conducting search. He further submitted that the petitioner was produced in this case on execution of Prisoner Transit Warrant (P.T.Warrant) on 22.12.2022 and since then he is in judicial custody and the Investigating Officer after completion of investigation filed final report and the same was numbered as S.C.NDPS No.71 of 2023 on the file of the I Additional District and Sessions Judge cum Metropolitan Sessions Judge at Malkajgiri, Medchal-Malkajgiri District and the same is pending. Therefore, further detention of the petitioner in judicial custody is not required. He further submitted that accused No.2 has filed Criminal Petition No.10824 of 2024 and the same was allowed on 01.10.2024 and granted bail to accused No.2. He also submitted that aggrieved by the bail granted in favour of accused No.2, respondent has approached the Hon’ble Apex Court and filed S.L.P. and the same was dismissed. Against the petitioner herein also the very same allegations are levelled and he is also entitled for grant of bail. The petitioner is ready to abide by the conditions that may be imposed by this Court. 5.1 Per contra, learned Special Public Prosecutor has submitted that the petitioner has caught in the factory while manufacturing the Mephedrone and the contraband seized from the petitioner and other accused when the petitioner was in conscious possession of the contraband. The contention raised by the learned counsel for the petitioner that the petitioner was made as accused No.6 only basing on the confession statement given by accused No.1, is not true and correct. He further submitted that the police strictly followed the mandatory procedure as prescribed under the provisions of the NDPS Act while conducting search and also in subsequent stages. 5.2 He further submitted that the accused Nos.1, 3 and 7 also deposed in their statements that accused No.6 was manufacturing Mephedrone in Hyderabad as well as in Yamunanagar, Haryana and the panch witnesses have also stated that accused No.6 admitted that he was manufacturing Mephedrone. 5.2 He further submitted that the accused Nos.1, 3 and 7 also deposed in their statements that accused No.6 was manufacturing Mephedrone in Hyderabad as well as in Yamunanagar, Haryana and the panch witnesses have also stated that accused No.6 admitted that he was manufacturing Mephedrone. The petitioner has committed the serious offence, which is punishable under the provisions of the NDPS Act and the contraband was seized from the petitioner and other accused is 136.275 kgs. of Mephedrone, which is more than commercial quantity. 5.3 He also submitted that the petitioner is also involved in a similar offence punishable under the provisions of the NDPS Act at Yamunanagar, Haryana, wherein 661.75 kgs. of Mephedrone was seized by the DRI, Delhi Zonal Unit on 29/31.07.2022 from the petitioner and other accused and the petitioner was added for his role in illicit manufacturing of Mephedrone and in the above said crime, the petitioner filed application for grant of bail on the file of Additional Sessions Judge, Yamunanagar, Haryana and the same was dismissed on 13.11.2024. He further submitted that as per the provisions of Section 37(1) of the NDPS Act, the petitioner is not entitled for grant of bail. He also submitted that this Court granted bail in favour of accused No.2, however, the petitioner is not entitled to seek bail solely basing upon the bail granted in favour of accused No.2 on the ground that this Court granted bail in favour of accused No.2 due to his health condition. 5.4 In support of his contention, he relied upon the following judgments of Hon’ble Supreme Court which held as follows: i) Narcotics Control Bureau v. Kashif , [2024 SCC OnLine SC 3848] iii) Union of India vs. Rattan Mallik @ Habul (Criminal Appeal No.137 of 2009). 6. Learned counsel for the petitioner by way of reply submitted that this Court granted bail in favour of accused No.2 not only on the health ground but also on the other grounds also and therefore, prayed to grant bail to the petitioner. 7. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that the police seized the contraband i.e. 136.275 kgs. of Mephedrone. There are specific allegations levelled against the petitioner is that he was caught in the factory while manufacturing Mephedrone, when he was conscious possession of contraband. 7. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that the police seized the contraband i.e. 136.275 kgs. of Mephedrone. There are specific allegations levelled against the petitioner is that he was caught in the factory while manufacturing Mephedrone, when he was conscious possession of contraband. As per the provisions of the NDPS Act, 2 grams is small quantity and 50 grams is the commercial quantity. Whereas the contraband seized in the present case is 136.275 kgs. of Mephedrone, which is more than commercial quantity. 8. The record further reveals that the petitioner is involved in similar offence and he was an accused in Crime F. No.DRI/HZU/SIC/INT/01/2022, at Yamuna Nagar, Haryana, wherein 661.75 kgs of Mephedrone was seized from the petitioner and other accused and the petitioner filed an application for grant of bail vide Crl.P. No.2554 of 2024 on the file of I Addl. Sessions Judge, Yamunanagar and the same was dismissed on 13.11.2024. 9. At this stage, it is pertinent to note Section 37 of the NDPS Act, which 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 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.” In view thereof, Section 37 of the NDPS Act mandates that offences involving commercial quantities be non-bailable, requiring reasonable grounds to believe the accused is not guilty and unlikely to commit further offences while on bail. 10. 10. In Kashif, (supra) Hon’ble Supreme Court held in para No.39 which reads as follows: “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 11. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 11. In the above said judgment the Hon’ble Apex Court overruled the decision of the High Court on the ground that bail was granted to the respondent therein solely basing upon non compliance with Section 52A of the NDPS Act, which governs the disposal of seized narcotic substances. The Court clarified that such non-compliance does not automatically invalidate a trial or entitle the accused to bail, emphasizing the necessity for the prosecution to establish the integrity of evidence and the chain of custody. The ruling underscored that procedural lapses must be evaluated within the broader context of the case, reinforcing the principle that non-compliance with Section 52A does not, by itself, warrant bail or invalidate the trial. 12. It is already stated supra, in the case on hand, the contraband seized from the petitioner and other accused is 136.275 kgs. of Mephedrone and the petitioner was also involved in the similar offence at Yamunagar, Haryana vide F. No.DRI/HZU/ SIC/INT/01/2022, punishable under the provisions of the NDPS Act, wherein 661.75 kgs. of Mephedrone was seized. 13. Taking into consideration the facts and circumstances of the case and gravity of offence, as well as the principle laid down by the Hon’ble Apex Court in Kashif (supra), this Court is not inclined to grant bail to the petitioner. 14. Accordingly, the criminal petition is dismissed.