Andhra Pradesh High Court - Amravati
Kasavaraju Satyavara Prasad vs State Of Ap on 12 August, 2021
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO.4578 of 2021
ORDER:-
This petition is filed under Sections 437 and 439 of Code of the
Criminal Procedure, 1973 (for short 'Cr.P.C.') to grant regular bail to
the petitioner/A-3 in connection with Crime No.300 of 2020 of the
Pamarru Police Station, Krishna District for the offences punishable
under Sections 269, 270, 273, 328 r/w 34 of Indian Penal Code,
1860 (for short IPC), Section 5(1) and 22 of Cigarettes and Other
Tobacco Products Act, 2003 (For short COTP Act) and Section 8(c) r/w
20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
(for short "NDPS Act").
2. The case of prosecution is that on 25.12.2020 at about 14-00
hours at the outskirts of Addada village of Pamarru Mandal, the
police found accused No.4-T.srinivasa Rao who is the driver of lorry
bearing No.TS 07 UE 6830 in possession of tobacco products i.e.
gutkha and khainee which are supplied by A-1, the same is
transported by A-4 as per the instructions of the lorry owner i.e. the
petitioner herein and he handed over the products to the
petitioner/A-2 who is the purchaser. Basing on the same, the
present crime was registered.
3. Heard Sri R.Siva Sai Swarup, learned counsel for the petitioner
and the learned Public Prosecutor for the respondent-State.
4. Learned counsel for the petitioner/A-3 submits that
transportation of tobacco products is not an offence and the police
cannot register the offences under IPC except under Food Safety
Standards Act. He also submits that in Crl.P.Nos.3718 of 2018 and
5103 of 2019 and batch, this Court has already laid down the ratio
and basing on the same, several orders were passed by this Court.
He also submits that even assuming that the petitioner has
committed the offence under NDPS Act, the quantity that is seized by
the police is only 2 KGs which is not a commercial quantity, as such
there is no bar under Section 37 of the NDPS Act. Learned counsel
also raised other grounds stating that the police failed to follow the
procedure contemplated under NDPS Act while drawing the samples.
He also submits that the police cannot straight away take the
samples under the NDPS Act. As per the judgment of the Hon'ble
Apex Court, they must produce the entire ganja before the
Magistrate and the Magistrate must see and give a certificate of
samples. Before the Magistrate only, the police can take samples
under the certificate issued by the Magistrate and further submits
that A-2 has already enlarged on bail vide order dated 18.01.2021 in
Crl.P.No.175 of 2021 by this Court.
5. The learned Assistant Public Prosecutor submits that
transportation of tobacco products is banned in the State of Andhra
Pradesh.
6. In reply, learned counsel for the petitioner submits that as per
the Circular No.13/SO/2019 dated 15.08.2019, issued by the High
Court for the State of Telangana at Hyderabad, the police cannot
register a case for transportation of ganja and other tobacco
products.
7. Admittedly, as per the said circular there is no prohibition for
transportation of ganja. As far as the offence under NDPS Act is
concerned, the contraband that is seized from the petitioner is only 2
KGs which is not a commercial quantity and there is no bar under
Section 37 of the NDPS Act. However, nothing is placed on record to
show that the petitioner is a habitual offender, this Court deems it
appropriate to grant bail to the petitioner.
8. Accordingly, this Criminal Petition is allowed. The petitioner/
A-3 shall be enlarged on bail on execution of self bond for
Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like
sum each to the satisfaction of the learned Judicial First Class
Magistrate, Gudivada.
Consequently, miscellaneous applications pending, if any, shall
stand closed.
___________________________
LALITHA KANNEGANTI, J
Date: 12.08.2021
KA
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
(Allowed)
CRIMINAL PETITION No.4578 of 2021
Dated 12.08.2021
KA
