Andhra Pradesh High Court - Amravati
Vanthala Venkatarao vs The State Of A.P., on 21 August, 2024
1
APHC010300442024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
WEDNESDAY, THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO: 4833/2024
Between:
Vanthala Venkatarao ...PETITIONER/ACCUSED
AND
The State Of A P ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused:
1. SAMANTHA KRISHNA SRIRAMAKAVACHAM
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR
The Court made the following ORDER:
1. This is the 2nd Criminal Petition, under Section 482
4 of Bharatiya Nagarik
Suraksha Sanhita, 2023 ( for short, 'BNSS') [previously filed under section 438
of Cr.P.C.,] has been filed by the Petitioner/A4,, seeking anticipatory bail, in
Crime No.176 of 2024 of Gajuwaka Police Station, Visakhapatnam District,
registered for the offences punishable under Sections 8(c) r/w 20(b)(ii)(C) r/w
25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short
'the NDPS Act').
2. The Prosecution's case, in brief, is that, on 26.03.2024 upon the receipt
of credible information regarding illegal possession and transportation of
Ganja, the Sub-Inspector
Inspector of Gajuwaka Police Station, along with his personnel
and mediators, proceeded to Lanka Grounds beside NH-16 in Old Gajuwaka
at 14.15 hours. There, they found A.1 and A.2 in possession of Ganja and
seized the contraband in 8 brown color taped packets, each weighing 2 kg,
totaling 16 kg. The Police also seized a black Suzuki Access Scooty
(registration No.AP39SV 8274), a Silver Oppo Android cell phone belonging to
A.1, a blue POCO Android cell phone belonging to A.2 and cash amounting to
Rs.500/- from A.2 in the presence of mediators. Subsequently, A.1 and A.2
were arrested and a case was registered against them based on the
mediators report. It is alleged that A.1 and A.3 had procured the Ganja from
A.4, and at the scene, A.1 was selling ganja to A.2 and A.4 is reported to be
absconding.
3. Learned counsel for the Petitioner/A.4 submits that the Petitioner has
been falsely implicated in this case solely based on the confessional
statements of co-accused; Petitioner has no criminal history over the past 44
years; Petitioner lacks the financial capacity to purchase the alleged
contraband and has no known connections with the co-accused; A.1 and A.2
were granted regular bail by this Hon'ble Court vide Crl.P.No.3203 of 2024 on
09.05.2024; Petitioner is willing to cooperate with the investigation and comply
with any conditions imposed by this Court. Therefore, the learned counsel
requests the grant of anticipatory bail.
4. The Learned Assistant Public Prosecutor opposed the grant of
anticipatory bail to the Petitioner on the ground that the investigation is still
pending.
5. I have heard both sides. Learned counsel on both sides reiterated their
submissions in accordance with the contentions outlined in the petition and
the report.
6. It is trite law that the power to grant a pre-arrest bail under Section 438
of the Cr.P.C., is extraordinary in nature and is to be exercised sparingly.
Thus, pre-arrest bail cannot be granted in a routine manner. The Hon'ble Apex
Court, adverting to its previous precedents, has discussed the parameters to
be considered while considering pre-arrest bail applications, in the case of
State of A.P. v. Bimal Krishna Kundu1, has held as under:
"8. A three-Judge Bench of this Court has stated in Pokar Ram v. State
of Rajasthan [(1985) 2 SCC 597 : 1985 SCC (Cri) 297 : AIR 1985 SC 969]
: (SCC p. 600, para 5)
"5. Relevant considerations governing the court's decision in granting
anticipatory bail under Section 438 are materially different from those when
an application for bail by a person who is arrested in the course of
investigation as also by a person who is convicted and his appeal is
pending before the higher court and bail is sought during the pendency of
the appeal." 9. Similar observations have been made by us in a recent
judgment in State v. Anil Sharma [(1997) 7 SCC 187 : 1997 SCC (Cri)
1039 : JT (1997) 7 SC 651] : (SCC pp. 189-90, para 8)
"The consideration which should weigh with the Court while dealing with
a request for anticipatory bail need not be the same as for an application to
release on bail after arrest."
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12. We are strongly of the opinion that this is not a case for exercising
the discretion under Section 438 in favour of granting anticipatory bail to
the respondents. It is disquieting that implications of arming the
respondents, when they are pitted against this sort of allegations involving
well-orchestrated conspiracy, with a pre-arrest bail order, though subject to
some conditions, have not been taken into account by the learned Single
Judge. We have absolutely no doubt that if the respondents are equipped
with such an order before they are interrogated by the police it would
greatly harm the investigation and would impede the prospects of
unearthing all the ramifications involved in the conspiracy. Public interest
also would suffer as a consequence. Having apprised himself of the nature
and seriousness of the criminal conspiracy and the adverse impact of it on
"the career of millions of students", learned Single Judge should not have
persuaded himself to exercise the discretion which Parliament had very
thoughtfully conferred on the Sessions Judges and the High Courts
through Section 438 of the Code, by favouring the respondents with such a
pre-arrest bail order."
7. The learned counsel for the Petitioner/A.4 submits that the initiation of
the proceedings against the Petitioner was premature and the Petitioner has
been falsely roped in the present case merely based on the confessional
(1997) 8 SCC 104
statements of the co-accused; there is no incriminating evidence against the
Petitioner; the Petitioner did not meddle with the investigation; the Petitioner
has no link with the said co-accused persons and the Investigation
authorities have not collected any independent material showing the
Petitioner's involvement in the commission of the offence.
8. Learned Assistant Public Prosecutor contends that the investigation
could not be completed, as the Petitioner absconded; the contention that
confessional statement is a weak piece of evidence cannot be taken at this
stage, and in the event, the Petitioner is granted pre-arrest bail, he may not
cooperate with the investigation and may threaten the witnesses.
9. In the present case, 16 kgs of Ganja, was alleged to be in possession
of the co-accused. Previously, the Petitioner filed an anticipatory bail
application in Crl.P.No.2795 of 2024, which was dismissed as withdrawn by
this Court on 10.07.2024. The learned Public Prosecutor contends that A.4
is the supplier of the Ganja, which A.1 and A.3 procured from A.4.
10. It is noted that the co-accused have been arrested and they have
made specific allegations against the Petitioner in their confessional
statements. It is relevant to note that the statements of the co-accused are
to be tested at the time of trial. No reason has also been pleaded as to why
the co-accused would try to falsely implicate the Petitioner.
11. It is erroneous to say that a confessional statement made by the
accused during interrogation cannot be considered or looked into to connect
the other co-accused. Such disclosure statement of co-accused can
certainly be taken into consideration for providing a lead in the investigation
and even during trial it is admissible under Section 30 of the Indian
Evidence Act.
12. Section 30 of the Indian Evidence Act provides that when more
persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and other of such
persons is proved, the Court may take into consideration such confession
as against such other person as well as against the person who makes such
confession.
13. No contraband was doubtless recovered from the Petitioner's
possession. Still, per the learned Assistant Public Prosecutor's contention,
Petitioner/A.4 is the prime Accused and alleged supplier of Ganja;
additionally, A.4 is involved in another NDPS case in Cr.No.120 of 2024 on
the file of Malkapuram P.S. The investigation in this case still needs to be
completed. The Petitioner still needs to be apprehended. Still, the
investigation agency must collect evidence of the Petitioner's involvement in
the alleged offence. In case the Petitioner is released on bail, there is every
possibility of interfering with the further investigation.
14. In Narcotics Control Bureau v. Pallulabid Ahmad Arimutta 2, the
Hon'ble Apex Court held that:
11. Having gone through the records along with the tabulated statement of
the respondents submitted on behalf of the petitioner NCB and on carefully
perusing the impugned orders [Pallulabid Ahamad Arimutta v. State 3 ] ,
[Mohd. Afzal v. Union of India4], [MuneesKavilParamabath v. State5], [Abu
Thahir v. State6], [Mohd. Afzal v. Union of India7], [MuneesKavilParambath
v. State of Karnataka8] passed in each case, it emerges that except for the
voluntary statements of A-1 and A-2 in the first case and that of the
respondents themselves recorded under Section 67 of the NDPS Act, it
appears, prima facie, that no substantial material was available with the
prosecution at the time of arrest to connect the respondents with the
allegations levelled against them of indulging in drug trafficking. It has not
been denied by the prosecution that except for the respondent in SLP (Crl.)
No. 1569 of 2021, none of the other respondents were found to be in
possession of commercial quantities of psychotropic substances, as
contemplated under the NDPS Act.
(2022) 12 SCC 633
2019 SCC OnLine Kar 3516
2020 SCC OnLine Kar 3433
2020 SCC OnLine Kar 3431
2019 SCC OnLine Kar 3517
2020 SCC OnLine Kar 1294
2020 SCC OnLine Kar 3432
12. It has been held in clear terms in Tofan Singh v. State of Tamal Nadu,
(2021) 4 SCC 1, that a confessional statement recorded under Section 67
of the NDPS Act will remain inadmissible in the trial of an offence under the
NDPS Act. In the teeth of the aforesaid decision, the arrests made by the
petitioner-NCB, on the basis of the confession/voluntary statements of the
respondents or the co-accused under Section 67 of the NDSP Act, cannot
form the basis for overturning the impugned orders releasing them on bail.
The CDR details of some of the accused or the allegations of tampering of
evidence on the part of one of the respondents is an aspect that will be
examined the stage of trial. For the aforesaid reason, this Court is not
inclined to interfere in the orders dated 16th January, 2020, 19th December,
2019 and 20th January, 2020 pased in SLP (Crl.) No@ Diary
No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No. 1465/2021, SLP
(Crl.) No. 1773-74/2021 and SLP (Crl.) No.2080/2021 respectively. The
impugned orders are, accordingly, upheld and the Special Leave Petitions
filed by the petitioner-NCB seeking cancellation of bail granted to the
respective respondents, are dismissed as meritless.
15. It is to be kept in mind that the investigation is currently at a nascent
stage. The considerations governing the grant of anticipatory bail are
materially different than those to be considered while adjudicating the
application for the grant of regular bail, as in the case referred to above, the
accused is already under arrest and substantial investigation has been carried
out by the investigating agency.
16. The Hon'ble Apex Court, in the case of Tofan Singh v. State of Tamil
Nadu9, held that a disclosure statement made under Section 67 of the NDPS
Act is impermissible as evidence. However, it is relevant to observe that the
Court is considering applications under Section 438 of the Cr.P.C., for pre-
arrest bail. The applicants will be entitled to the benefit of the said judgment, in
the opinion of this Court, after the investigation is completed and the charge
sheet is filed.
17. The Hon'ble Apex Court in the case of State of Haryana v. Samarth
Kumar10, has held as under:
(2021) 4 SCC 1
2022 SCC OnLine SC 2087
"4. The High Court decided to grant pre-arrest bail to the respondents on the
only ground that no recovery was effected from the respondents and that
they had been implicated only on the basis of the disclosure statement of the
main accused Dinesh Kumar. Therefore, reliance was placed by the High
Court in the majority judgment of this Court in Tofan Singh v. State of Tamil
Nadu, (2021) 4 SCC 1.
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8. In cases of this nature, the respondents may be able to take advantage of
the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the
time of arguing the regular bail application or at the time of final hearing after
conclusion of the trial.
9. To grant anticipatory bail in a case of this nature is not really warranted.
Therefore, we are of the view that the High Court fell into an error in granting
anticipatory bail to the respondents."
18. In an Appeal filed against the granting of anticipatory bail for the
offences punishable under Sections 8(c), 20(b)(ii)(c) and 29(1) of the NDPS
Act, the Hon'ble Supreme Court held in State by the Inspector of Police v.
B. Ramu11 that:
11. In case of recovery of such a huge quantity of narcotic substance, the
Courts should be slow in granting even regular bail to the accused what to
talk of anticipatory bail more so when the accused is alleged to be having
criminal antecedents.
12. For entertaining a prayer for bail in a case involving recovery of
commercial quantity of narcotic drug or psychotropic substance, the Court
would have to mandatorily record the satisfaction in terms of the rider
contained in Section 37 of the NDPS Act.
19. It is settled law that custodial interrogation is qualitatively more elicitation
oriented than questioning a suspect who is well ensconced with a favourable
order under Section 438 of the Cr.P.C. The Hon'ble Apex, in the case of State
V. Anil Sharma 12 , has also underlined the importance of custodial
interrogation as under:
"6. We find force in the submission of the CBI that custodial interrogation is
qualitatively more elicitation-oriented than questioning a suspect who is well
ensconced with a favourable order under Section 438 of the Code. In a
case like this effective interrogation of a suspected person is of tremendous
CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Crl. ) No(s). 8137 of 2022)
(1997) 7 SCC 187
advantage in disinterring many useful informations and also materials which
would have been concealed. Success in such interrogation would elude if
the suspected person knows that he is well protected and insulated by a
pre-arrest bail order during the time he is interrogated. Very often
interrogation in such a condition would reduce to a mere ritual. The
argument that the custodial interrogation is fraught with the danger of the
person being subjected to third-degree methods need not be
countenanced, for, such an argument can be advanced by all accused in all
criminal cases. The Court has to presume that responsible police officers
would conduct themselves in a responsible manner and that those
entrusted with the task of disinterring offences would not conduct
themselves as offenders.
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8. The above observations are more germane while considering an
application for post-arrest bail. The consideration which should weigh with
the Court while dealing with a request for anticipatory bail need not be the
same as for an application to release on bail after arrest. At any rate the
learned Single Judge ought not to have side-stepped the apprehension
expressed by the CBI (that the respondent would influence the witnesses)
as one which can be made against all accused persons in all cases. The
apprehension was quite reasonable when considering the high position
which the respondent held and in the nature of accusation relating to a
period during which he held such office."
20. Learned counsel for the Petitioner contends that A.1 and A.2 were
granted regular bail. However, this Court finds that this fact cannot be used as
a basis for granting anticipatory bail to the Petitioner, as the release of A.1 and
A.2 might be due to their cooperation with the investigation and completion of
the investigation in respect of the role played by them.
21. Considering the grave nature of the offence and the allegations levelled
against the Petitioner, this Court views that the custodial interrogation of the
Petitioner/Accused is required in this case for proper and just investigation of
this case. The material on record indicates that the Petitioner is the primary
supplier of ganja and is alleged to have criminal antecedents. The offence
alleged to be committed by the Petitioner/Accused No.4 is against the society,
and thus, considering all the attending facts and circumstances of the case as
well as the gravity of the offence, as also the settled principle of law that power
of grant of anticipatory bail, is to be sparingly exercised in extraordinary
circumstances. Thus, the implication of the Petitioner prima facie cannot be
said to be without justification. That being so, this Court cannot return a finding
that there are reasonable grounds to believe that the Petitioner is not guilty of
charged offences. There is no reason available to this Court to record
satisfaction that there are reasonable grounds for believing that the Petitioner
is not guilty of such offence and are not likely to commit any offence while on
bail. Thus, no such circumstances have been made out in this case, and this
Court does not find it a proper case for granting the relief of anticipatory bail to
the Petitioner. Therefore, without commenting on the merits of the case, lest it
may prejudice the case of either of the parties, the anticipatory bail application
of Petitioner is liable to be dismissed.
22. In the result, the Criminal Petition is dismissed.
Miscellaneous pending applications, if any, shall stand closed.
________________________
T. MALLIKARJUNA RAO, J
Date: 21.08.2024.
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
CRIMINAL PETITION No. 4833 of 2024
Date: 21.08.2024.
SAK
