THE HON'BLE JUSTICE G. SRI DEVI
CRIMINAL PETITION No.1443 of 2021
ORDER:
The petitioners, who are accused Nos.1 and 2, filed the present application under Sections 437 and 439 Cr.P.C., seeking to enlarge them on bail in S.C.No.21 of 2021 on the file of the Metropolitan Sessions Judge at Nampally, Hyderabad.
A charge sheet came to be filed against the petitioners for the offences punishable under Sections 20, 28 and 29 of the N.D.P.S. Act, 1985. The petitioners were arrested on 21.01.2020 and since then they are in jail.
The case of the prosecution, in brief, is that on receipt of credible information, the Senior Intelligence Officer, D.R.I., along with D.R.I. officials laid a trap at Pedda Amberpet Toll Plaza and intercepted a Goods Carrier vehicle bearing No.MP 09 HF 0952, which was covered by another number plate bearing No.AP 02 W 7747, passing through Pedda Amberpet Toll Plaza, Outer Ring Road, Hyderabad, going towards Bidar. The D.R.I. officials found the petitioners in the driver's Cabin and on enquiry they stated that the vehicle is containing paddy husk. On search, the D.R.I. officials found 44 blue coloured HDPE drums, containing Ganja. Total Ganja in 44 HDPE drums was 1335.4 kgs. After following the due procedure, the D.R.I. officials, seized the vehicles and contraband 2 (Ganja) under a cover of panchanama and also recorded the statements of the petitioners under Section 67 of the N.D.P.S. Act and arrested the petitioners on 21.01.2020 and remanded them to judicial custody. After completion of investigation, the D.R.I. officials filed final report, wherein the details of the criminal conspiracy so hatched and executed by the petitioners are mentioned, which are as under:-
a. The petitioners hatched a criminal conspiracy along with others to procure Ganja and export inter-state. In pursuance of the said criminal conspiracy, the petitioners started from Bidar, Karnataka to Bhadrachalam, Telangana. They reached Bhadrachalam, procured Ganja and packed separately and then concealed in between the paddy husk in Goods Carriage heavy vehicle bearing registration No. MP 09 HF 0952.
b. The petitioners in their statements admitted that they were aware that the ganja concealed in between the paddy husk in Goods vehicle, being transported by them is a narcotic drug and transporting of the same is punishable under the provisions of the N.D.P.S. Act and they resorted to this activity for monetary gain. The petitioners in their statements stated that they were offered an amount of Rs.10,000/- upon successful delivery of the said ganja at the destination and further stated that all their expenses for food etc., were borne by Syed Asif.
c. The 2nd petitioner in his statement stated that he tied a tarpaulin on top of the cargo with rope. Further, the 1st petitioner in his statement stated that though he does not have driving license, he has driven the vehicle for monetary 3 gains. This shows the culpable mental state of both the petitioners.
d. Both the petitioners in their statements stated that the said Ganja was concealed in between paddy husk. The manner of concealment shows the extent of the planning in exporting Ganja Inter-state. The said Goods carriage heavy vehicle with Ganja concealed therein had already been driven by the 1st petitioner with the assistance of the 2nd petitioner from Bhadrachalam to the outskirts of Hyderabad. Thus, the circumstances strongly point to a criminal conspiracy to export ganja inter-state and act in furtherance of the conspiracy by the petitioners in transporting the same inter-state. Such a pre-planned conspiracy and action in furtherance of the same could be thwarted only due to the specific intelligence gathered by the officers of D.R.I. and prompt action taken by the officers of D.R.I.
Thus, it is alleged that the petitioners having complete knowledge intentionally contravened the provisions of the N.D.P.S. Act and thereby committed the offences punishable under Sections 20, 28 and 29 of the N.D.P.S. Act.
Heard Sri M.Ram Mohan Reddy, learned Counsel for the petitioners and Sri Anil P.Tiwari, learned Senior Public Prosecutor appearing for the respondent.
Learned Counsel for the petitioners would submit that the 1st petitioner was the driver and the 2nd petitioner was the cleaner of the vehicle. One Syed Asif is the owner of the vehicle, who had engaged 4 the petitioners on temporary basis to drive the lorry from Bhadrachalam to Bidar, since his permanent driver fell sick. It is also submitted that the said Syed Asif, who had engaged the petitioners, is not made as an accused; that the petitioners are eking out their livelihood by getting daily wage employment and they have no capacity to do with the alleged offence. It is further submitted that the petitioners are innocent persons and they have nothing to do with the alleged offence and they were falsely implicated in the said crime. It is also submitted that the petitioners are in jail since 21.01.2020, entire investigation has been completed and a final report has been filed, which was taken on file as S.C.No.21 of 2021.
Learned Special Public Prosecutor appearing for the respondent would submit that the facts and circumstances of the case indicates that the petitioners have actively participated in the commission of offence and the admission made by the petitioners prima facie show their wilful involvement in the criminal conspiracy to transport and deal in Ganja. It is further submitted that this Court after considering all the facts on record dismissed the earlier bail application filed by the petitioners in Crl.P.No.5802 of 2020 vide order dated 02.12.2020 and that the petitioners have not brought out any new facts except stating that final report has been filed, which was taken cognizance as Sessions Case. It is also submitted that mere detention in custody for a period of more than six months is not a valid ground to release the petitioners on bail in a crime registered 5 under the provisions of N.D.P.S. Act. It is further submitted that in catena of judgments, the Apex Court held that 'mere filing of final complaint ipso facto does not entitle to an accused to get an order of bail in a case relating to offence under the N.D.P.S. Act." It is also submitted that keeping in view the provisions of the N.D.P.S. Act, its objectives and the fact that the Act has been legislated for the benefit of the Society and that the public at large should have precedence over the prayers of the petitioners, the bail application is liable to be dismissed.
Admittedly, total 1335.4 Kgs. of Ganja has been seized from the possession of the petitioners. Further, a perusal of the material on record would show that the two bail applications filed by the petitioners before the Metropolitan Sessions Judge, Nampally have been dismissed vide orders dated 13.03.2020 and 24.04.2020 vide Crl.M.P.No.748 of 2020 and Electronic M.P.No.59 of 2020 respectively. Thereafter, the 2nd petitioner filed Crl.M.P.No.2331 of 2020 before this Court seeking bail and later which was dismissed as withdrawn on 15.06.2020. Subsequently, both the petitioners have filed Criminal Petition No.5802 of 2020 before this Court seeking bail on the ground that the respondent officials have not followed the procedure laid down under N.D.P.S. Act, more particularly under Sections 50 and 56 of the N.D.P.S. Act. After evaluating all the contentions raised by the petitioners, on merits, the bail application filed by the petitioners was dismissed by another co-ordinate Bench of this Court, vide order, 6 dated 02.12.2020 passed in Criminal Petition No.5802 of 2020. Further, the Apex Court in the Constitution Bench judgments in the matters of State of Punjab v. Baldev Singh1 and Vijaysinh Chandubha Jadeja v. State of Gujarat2 has observed that compliance of Section 50 of the N.D.P.S. Act can be looked into during trial. Therefore, this aspect may not be looked into at the stage of grant of bail.
In State of Tamilnadu vs. S.A.Raja3, the Apex Court held that without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. The Court further held that the principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents. Filing of the charge sheet/final report does not amount to a substantial change in fact-situation.
That apart, as is evident from the record more particularly the statements of the petitioners recorded under Section 67 of the N.D.P.S. Act would show that the petitioners were aware that the Ganja concealed in between the paddy husk in goods carriage, being transported by them is a narcotic drug and that they resorted to do 1 JT 1999 (4) SC 595 2 (2011) 1 SCC 609 3 2005 (8) SCC 380 7 the same for monetary gain. Further, the apprehension of the learned Special Public Prosecutor appearing for the respondent that it is very difficult to secure the presence of the petitioners, if they are released on bail as they are residents of Karnataka State, cannot be ruled out.
Therefore, by taking into consideration the nature of serious allegations made against the petitioners; the gravity of offence and since there are no changed circumstances from the date of dismissal of earlier bail applications, I am not inclined to grant bail to the petitioners.
Accordingly, this Criminal Petition is dismissed. However, since the petitioners are in jail, the learned Metropolitan Sessions Judge at Nampally, Hyderabad, is hereby directed to dispose of S.C.No.21 of 2021, in accordance with law, as early as possible, preferably, within a period of six months from the date of receipt of a copy of this order.
_____________________ JUSTICE G. SRI DEVI 28.06.2021 gkv/Gsn.
8