THE HONOURABLE JUSTICE G. SRI DEVI
CRIMINAL PETITION No. 4041 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_4041_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 and so far the respondent authorities did not file the charge sheet. He also submits that the petitioner is innocent, nothing to do with the alleged offence and he has been falsely implicated. He further submits that the material part of investigation has been completed except filing of a formal charge sheet 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. He also submits that the petitioner is having chronic kidney disease (State-V) along with hyper tension and he was admitted in Gandhi Hospital, 3 GSD, J Crlp_4041_2021 Secunderabad on 05.01.2021 and discharged on 08.01.2021. 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 and 06.05.2021. 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, 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 4 GSD, J Crlp_4041_2021 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. It is also submitted that the offences relating to N.D.P.S. substances have deep rooted conspiracies and cause severe threat to society and hence they need to be viewed seriously and if the petitioner is released on bail, he may tamper with the evidence and also influence the other connected persons, which may hamper the progress of the investigation and may cause serious and irreparable loss to the prosecution. In support of his contentions, learned Special Public Prosecutor relied upon the following judgments of the Apex Court as well as various High Courts:-
1. R.K.Naker v. Shabir Fida Hussain and another1
2. Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau2
3. Mohd. Khalid v. State of West Bengal3
4. Bharat @ Mamul and another v. State of Maharashtra4
5. State of Madhya Pradesh v. Kajad5
6. Durand Didier v. Chief Secretary, Union Territory of Goa6 1 (1991) 2 EFR 583 2 (2007) 2 SCC (Crl.) 618 3 (2002) 7 SCC 334 4 (1991) 4 Bom.CR 126 5 AIR 2001 SC 3317 5 GSD, J Crlp_4041_2021
6. At the time when the matter was taken up for hearing, learned Counsel for the petitioner would submit that the petitioner is in jail since 11.12.2020 and till date no charge sheet/complaint has been filed by the prosecution. He also submits that as per the principles of law laid down by the Apex Court in Crl.A.No.699 of 2020, dated 26.10.2020, the petitioner is entitled for default bail since the respondent failed to file the charge sheet within the stipulated time. In reply to the said contention, learned Special Public Prosecutor appearing for the respondent would submit that entire investigation has been completed and the respondent/complainant has filed a complaint before the Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District, vide S.R.No.3959, dated 04.06.2021.
7. In view of the rival submissions, the point that arises for consideration is "Whether the petitioner is entitled to be enlarged on bail, in view of the bar under Section 37 of NDPS Act?"
8. 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 psychotropic substance, 6 1989 (3) SCR 1025 6 GSD, J Crlp_4041_2021 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, which are as under:-
1. In the year around 2019, A-1 had taken on rent a part of the premises of M/s. Sri Anjaneya Engingeering Works, near Ganesh Nagar, Subhash Nagar, IDA Jeedimetla and used the same to manufacture drugs illicitly.
2. In February, 2019, A-1 was introduced to Ismail and Ali, both based in Mumbai for manufacture of Mephedrone. Ali used to personally deliver or arrange for delivery of all the raw materials required to manufacture Mephedrone to A-1.
3. After manufacture of Mephedrone by A-1, initially Ali used to take delivery of Mephedrone and later on A-2 introduced to A-1 by Ali, used to take delivery of Mephedrone from A-1 in Hyderabad and deliver the same in Mumbai.
4. A-1 was paid in cash through Hawala for the Mephedrone manufactured and delivered by him.
5. An amount of Rs.12,49,000/- was seized at the residential premises of A-1, which are sale proceeds of Mephedrone of earlier consignments manufactured and delivered by A-1.7
GSD, J Crlp_4041_2021
6. A-1 clearly explained the process followed by him for manufacture of Mephedrone in his voluntary statement, dated 11.12.2020, recorded under Section 67 of the N.D.P.S. Act.
7. A-1 and A-2 were caught red handed when A-1 was handed over 3156 grams of Mephedrone to A-2 on 10.12.2020. The proceedings henceforth were recorded under the panchanama, dated 10.12.2020. A-1 and A-2 have affirmed the panchanama proceedings, dated 10.12.2020 in their voluntary statements.
8. An overview of premises used by A-1 clearly establishes that the same was used for manufacture of Mephedrone as it contained raw materials and equipment required for manufacture of Mephedrone. The same were seized under the panchanama, dated 10.12.2020. Further, certain raw materials and samples were also seized from the residential premises of A-1, under the panchanama, dated 10.12.2020.
9. Apart from the consignment of 3156 grams of Mephedrone caught red handed on 10.12.2020, A-1 had manufactured approximately 116 Kgs. of Mephedrone since November, 2019 and handed it over to the persons, who came from Mumbai and he received approximately Rs.89.00 lakhs as proceeds.
10. The two diaries and other documents recovered from the residential premises of A-1, contained crucial record of transactions pertaining to manufacture of Mephedrone 8 GSD, J Crlp_4041_2021 and sales; record of phone contacts; information pertaining to certain chemical compounds used in the manufacture of Mephedrone; manufacturing process of Mephedrone and records of delivery of raw materials required for manufacture of Mephedrone. These crucial entries were made in the diaries by A-1 and the same were explained by A-1 in his voluntary statement.
11. A-2 was engaged by Ali, based in Mumbai to transport Mephedrone to Mumbai after collecting it from A-1 in Hyderabad and he was paid Rs.10,000/- for each transaction and each time A-2 carried around 4-5 kgs of Mephedrone from Hyderabad to Mumbai. In his voluntary statement, A-2 stated that it was his 5th or 6th trip to Hyderabad on 10.12.2020 and he was caught red handed by the officers of D.R.I. when he received 3156 grams of Mephedrone from A-1 near Sree Bakery, Temple Alwal, Secunderabad and also stated that he know some of the MD abusers through Zaid and sold 10 grams of powder to them and earned around Rs.20,000/- from it.
12. Voluntary statements of Shaik Saleem (LW.6), K.J.Venkateshwara Rao (L.W.16), K.Ram Tilak (L.W.17) and Atikamsetty Appa Rao (L.W.9), give credence to the fact that A-1 was manufacturing illicit drugs at the premises of M/s. Sri Anjaneya Engineering Works and that A-2 used to regularly go in an auto of L.W.6 to A-1 and collect the Mephedrone.
9. Before proceeding further, it is relevant to note Section 37 of NDPS Act, which reads as follows:
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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 2[ offences under section 19 or section 24 or section 27 A 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.
10. In State of Madhya Pradesh v. Kajad (5 supra), the Apex Court held that the purpose for which the NDPS Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant is an exception under sub clause (ii) of clause (b) 10 GSD, J Crlp_4041_2021 of Section 37(1). For granting bail, the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail.
11. In State of Uttaranchal v. Rajesh Kumar Gupta7 and Union of India v. Rattan Mallik alias Habul8, the Supreme Court extensively discussed about scope and consequences failing to adhere Section 37 of NDPS Act and concluded that Section 37 of NDPS Act created an interdict to grant bail for an offence punishable under various provisions of the Act, where a commercial quantity of contraband is involved. According to Section 37(1)(b) of NDPS Act, unless the Court records its satisfaction that the petitioner did commit no offence and that he would not commit similar offence again while on bail under Section 439 Cr.P.C in serious offences like the offence punishable under the Act.
12. In Customs, New Delhi v. Ahmadalieva Nodira9, the Apex Court held that the Court has to keep in mind two conditions i.e., the satisfaction of the Court that there are reasonable grounds for 7 (2007) 1 Supreme Court Cases 355 8 (2009) 2 Supreme Court Cases 624 9 2004 (1) JCC 662 11 GSD, J Crlp_4041_2021 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 on reasonable grounds and the expression reasonable grounds means something more than prima facie grounds and it contemplates substantial probable causes for believing that the accused is not guilty of the alleged offences.
13. Further, in Shailendra Kumar Gupta @ Shailu v. State of U.P.10, the Allahabad High Court, while dismissing the bail application for the offences under N.D.P.S. Act, held that "the seriousness of cases under the N.D.P.S. Act have to be viewed like this that in a murder case, the accused commits murder of one or two persons, while those persons, who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable, it causes deleterious effects and deadly impact on the society".
14. In the present 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, 10 Crl.M.B.A.No.3515/2020, dt. 05.03.2020 12 GSD, J Crlp_4041_2021 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.
15. In view of the principles laid down by the Apex Court in the aforesaid judgments and 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.
16. Accordingly, the Criminal Petition is dismissed.
17. Miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
_____________________ JUSTICE G. SRI DEVI 16.06.2021 gkv/Gsn 13 GSD, J Crlp_4041_2021 14 GSD, J Crlp_4041_2021