THE HONOURABLE JUSTICE G. SRI DEVI
CRIMINAL PETITION No. 5391 of 2021
ORDER:
1. This Criminal Petition is filed, under Sections 437 and 439 of the Code of Criminal Procedure, 1973, seeking to grant bail to the petitioner/A-1 in F.No.DRI/HZU/48A/ENQ-122(INT)/2020 on the file of the Directorate of Revenue Intelligence, Zonal Unit, Hyderabad.
2. In brief, the case of the prosecution is that basing on specific intelligence that the petitioner, who is residing at H.No.1-8- 55/13/24, MES Colony, Venkatapuram, Alwal, Hyderabad, has involved in the illicit manufacture and sale of Mephedrone, a psychotropic substance specified under the N.D.P.S. Act, 1985, and he could be in possession of Mephedrone, which is likely to be handed over to some persons near Sree Bakery, Temple Alwal, Secunderabad, the officers of D.R.I., Hyderabad Zonal Unit, along with independent witnesses reached Sree Bakery, Temple Alwal, Secunderabad, on 10.12.2020 and laid wait. At that time, the petitioner came on a two-wheeler of Honda Shine bearing Registration No.AP-10-AL-0802 and stopped the vehicle opposite to the said Sree Bakery. After few minutes, A-2 (Sayyed Ashraf) came in an auto rickshaw bearing No.TS-09-UA-6518, got down and met the petitioner and received a white coloured plastic cover package from him and that the D.R.I. Officers intercepted the said persons. 2
GSD, J Crlp_5391_2021 On enquiry, the petitioner and A-2 said to have confessed their guilt of illicit manufacturing, selling, purchasing and transporting of 3.156 Kgs. of Mephedrone, a psychotropic substance under N.D.P.S. Act, which is valued at Rs.63.12 lakhs and that the D.R.I. Officers, seized the said contraband under the cover of panchanama; arrested the petitioner and A-2 on 11.12.2020 and remanded to judicial custody.
3. Heard Sri Gopalakrishna Kalanidhi, learned Counsel appearing for the petitioner, Sri T.V.Subba Rao, Special Public Prosecutor for D.R.I., Hyderabad and perused the record.
4. Learned Counsel for the petitioner would submit that the petitioner has been in judicial custody since 11.12.2020. The main contention of the learned Counsel for the petitioner is that the Apex Court has categorically observed that in cases where statutory remand period of 180 days was completed, it is the duty of the Court to grant bail irrespective of the fact whether the investigating authority filed charge sheet or not and as such, the petitioner is entitled for bail. In support of his contention, he relied on the judgment of the Apex Court in M.Ravindran v. State of Madras1 . The learned Counsel also submits that the petitioner is having chronic kidney disease (State-V) along with hypertension and that he is also having bilateral polycystic kidney disease with multiple 1 Crl.A.No.699 of 2020 3 GSD, J Crlp_5391_2021 hepatic cysts. He further submits that the entire investigation has been completed and charge sheet also filed and as such tampering the prosecution evidence would not arise. He further submits that the petitioner is the sole bread earner of his family and in view of his incarceration in jail, his family is on streets. The petitioner undertakes that he shall make himself available for interrogation before the concerned Investigating Officer as and when required and he shall not act in any manner which will be prejudicial to fair trial. The petitioner is a permanent resident of Venkatapuram, Alwal, Hyderabad, and as such, the question of his absconding would not arise. He also submits that the petitioner is ready to abide by any condition that may be imposed in the event of his enlargement on bail.
5. By filing Counter, learned Special Public Prosecutor for D.R.I., Hyderabad, would contend that after considering the facts of the case, the trial Court has rightly dismissed the bail applications filed by the petitioner on 12.01.2021, 17.02.2021, 25.03.2021, 19.04.2021, 06.05.2021 and 02.07.2021. It is further submitted that the records show that a prima facie case was made out against the petitioner in terms of the provisions of the N.D.P.S. Act. It is also submitted that the facts of the case on record and the admission made by the petitioner and A-2, prima facie show the involvement of the accused in illicit manufacturing of "Mephedrone" a psychotropic substance, 4 GSD, J Crlp_5391_2021 which is in violation of the provisions of the N.D.P.S. Act. The petitioner had actively participated in the commission of the offence and was one of the active parties to the criminal conspiracy to commit an offence under the N.D.P.S. Act and abetted in the commission of the offence. It is further submitted that the analysis test report, dated 20.05.2021, in respect of the samples of Mephedrone, which were forwarded to C.F.S.L., Hyderabad, would show that Mephedrone has been detected in Exhibits 1 to 4 and 6 and Ephedrine has been detected in Exhibits 5 and 7. Apart from that, he also submits that since the Investigating Authority has filed charge sheet within the stipulated time, the question of granting statutory bail to the petitioner would not arise.
6. In Pragyna Singh Thakur v. State of Maharashtra2 the Apex Court after considering the provisions of Section 167 (2) of the Cr.P.C. and the case laws on the subject, held as under:
"54. There is yet another aspect of the matter. The right under Section 167 (2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is 2 (2011) 10 SCC 445 5 GSD, J Crlp_5391_2021 filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt v. State3. The reasoning is to be found in paras 33 to 49."
7. In Uday Mohanlal Acharya vs State Of Maharashtra4, the Apex Court categorically held that "It is true that the right of an accused to be released on bail for default in submission of challan is a valuable and indefeasible right, but by the time the court is considering the exercise of the said right if a challan is filed then the question of grant of bail has to be considered only with reference to merits of the case under the provisions of the Code relating to grant of bail after filing of the challan which view is consistent with the view expressed by different Constitution Benches of this Court in several decades in connection with the issuance of writ of habeas corpus as well as for grant of bail".
8. The Apex Court has categorically held that if a challan is filed then the question of grant of bail has to be considered only with reference to merits of the case. Once the charge sheet had been filed, the Magistrate was not to consider the application for bail under Section 167 (2) of Cr.P.C.
3 (1994) 5 SCC 410 4 (2001) 5 SCC 453 6 GSD, J Crlp_5391_2021
9. The judgment relied upon by the learned Counsel for the petitioner is not applicable to the facts of the present case since the said case pertains to the indefeasible right of the accused if the prosecution failed to file the challan/charge sheet within the stipulated time. But in the instant case, the petitioner has been arrested on 11.12.2020 and the respondent/complainant filed charge sheet on 04.06.2021, which was not disputed by the learned Counsel for the petitioner. Therefore, 176 days after arrest of the petitioner, the respondent/complainant has filed charge sheet against the accused i.e., within the stipulated period of 180 days. In view of the above discussion and the dictum of Constitution Bench of the Apex Court in Sanjay Dutt's case (3 supra) and Pragyna Thakur's case (2 supra) and since the charge sheet has been filed within the statutory period of 180 days, there is no force in the contention of the learned Counsel for the petitioner that the petitioner is entitled for statutory bail. Hence, this Court is of the opinion that the petitioner is not entitled to statutory bail.
10. Coming to the merits of the case, as seen from the contents of charge sheet, the petitioner and A-2 were participants in a criminal conspiracy and acted in furtherance of such conspiracy, by illicitly manufacturing, possessing, selling, purchasing, transporting, warehousing and exporting inter-state of Mephedrone, a 7 GSD, J Crlp_5391_2021 psychotropic substance, without having valid licence/permit, thereby violated the provisions of Section 8 of the N.D.P.S Act. The details of the criminal conspiracy so hatched and executed are clearly mentioned in the complaint.
11. In the instant case, the quantity involved is 3156 grams of Mephedrone worth Rs.63,12,000/-. Further, the evidence collected during the course of investigation, clearly proves that the petitioner has involved in illicit manufacturing and sale of Mephedrone, which is a narcotic substance, in order to gain huge profits. When the petitioner is indulged in such serious crime, he is disentitled to be enlarged on bail in view of the bar contained under Section 37 of the N.D.P.S. Act. Since the petitioner is having complete knowledge intentionally contravened the provisions of the N.D.P.S. Act, and thereby committed offences punishable under N.D.P.S. Act, I do not find any ground to enlarge the petitioner on bail, though he is undergoing long period of incarceration, which is not a ground to enlarge him on bail.
12. The contention of the learned Counsel for the petitioner is that the petitioner is entitled bail on medical grounds as he is suffering from chronic kidney disease. Regarding the ailment of the petitioner, Discharge Card issued by the Gandhi Hospital, Secunderabad, reveals that the petitioner has already discharged 8 GSD, J Crlp_5391_2021 from the hospital on 08.01.2021. However, no document whatsoever has been filed along with this Criminal Petition with regard to the present health condition of the petitioner.
13. Accordingly, the Criminal Petition is dismissed.
14. Miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
____________________ JUSTICE G. SRI DEVI 17.08.2021 gkv/Gsn