Bombay High Court
Mahalaxmi S/O Nagaraju Chelluboyina vs The State Of Maharashtra Through Pso ... on 8 August, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (ABA) NO. 454 OF 2024
Mahalaxmi S/o Nagaraju Cheluboyina
Vs.
State of Maharashtra, Thru. PSO, PS Pardi, Tq. & District - Nagpur.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Anil S. Mardikar, Senior Advocate a/by Mr. Harsh
Kanjwani & Mr. Digvijay Singh, Advocate for applicant.
Mr. Sneha Dhote, APP for non-applicant/State.
CORAM : SMT. URMILA JOSHI PHALKE, J.
DATE : 08.08.2024
Heard.
2. By this application, the applicant is
seeking anticipatory bail in connection with Crime
No.383/2022, registered with Police Station Pardi,
District - Nagpur, for the offences punishable under
Sections 8(c), 20(b)(ii), 25 & 29 Narcotic Drugs and
Psychotropic Substances Act, 1985, (hereinafter
referred as the 'NDPS' Act).
3. The applicant is apprehending arrest at
the hands of police as the accusation against the
present applicant is on the basis of report lodged by
the Assistant Police Inspector namely Arun Bakal
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dated 15.11.2022, who was informed by Police
Inspector of Crime Branch regarding a secret
information relating to transportation of the
contraband truck bearing registration No.AP-16/PA-
7349. The said contraband was being transported
from Jagdalpur (Chattisgarh) to Bhandara via
Nagpur. Accordingly, the complainant along with the
Police Officers and Panchas rush to the Pardi Chowk,
Bhandara road near Jai Bhole Dhaba, Kapsi to
restrain the vehicle. The complainant and raiding
staff restrained the said vehicle and inspected goods
located in the truck. There were certain bags of
fertilizers and beneath of the said bags, 72 bags were
found containing 1555 kgs and 320 grams 'Ganja'
which was seized by the Police in presence of the
Panchas. During personal search of the accused
Someshwar Rao @ Bujji Narsimhamarti Kotipillai
and co-accused Balem Nanaji @ Nani Padyakapu
Balem, two mobile phones were seized and one
piece of paper having names of five-seven persons
and their contact numbers. The articles were
forwarded for Chemical Analysis after obtaining the
samples by following due procedure, the First
Information Report was lodged. As per allegation,
Investigating Agency found that there was contact
between the present applicant and the other co-
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accused. It is further alleged that it was the present
applicant, who has placed the order for the Ganja
and made available the truck to transport the same.
On the basis of the said, the applicant was arraigned
as an accused.
4. Mr. Mardikar, learned Senior Counsel for
the applicant submitted that applicant is neither
owner of the truck nor there is any nexus with the
said transaction of the contraband except the
allegation by the investigating agency in the
summary of the charge-sheet that present applicant
has placed the order and made available the truck
for transportation of the Ganja. There is absolutely
no material to connect him with the alleged
documents. He submitted that there is no money
transaction between the present applicant and the
other co-accused nor there is any telephonic
communication between the present applicant and
the other co-accused. He submitted that as per the
reply filed by the State, they requires the custody of
the present applicant for seizure of the mobile
phone, who obtain the CDR but, the mobile phone is
not required for obtaining the CDR. He also invited
my attention towards the communication by the
Investigating Officer to his Superiors for obtaining
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the CDR regarding the mobile number of the present
applicant. He submitted that even accepting the
contention of the State that there is a statement of
the co-accused, which is not sufficient to connect the
present applicant with the alleged offence, as in view
of the judgment of the Hon'ble Apex Court in the
case of Tofan Singh Vs. State of Tamil Nadu reported
in (2021) 4 SCC 1, the statement of the co-accused is
not admissible.
5. In support of his contention, he further
placed reliance on the order of the Hon'ble Apex
Court in the case of Vijay Singh Vs. State of Haryana
wherein the Hon'ble Apex Court has considered that
allegation in the FIR are that 1.7 kg Poppy Straw was
recovered from the co-accused. The petitioner
concededly was not present at the spot but was
named by the accused. That apart, there is no other
material to indicate the petitioner, the prosecution
urges that another case in the allegation of
commission of offence under NDPS Act are pending
against the petitioner.
6. Having regard to the circumstances, the
petitioner was released on anticipatory bail therein.
He submitted that here also except the allegation
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there is absolutely no material to connect the present
applicant with the alleged offence. He further
submitted that the object of Section 438 is to prevent
undue harassment of the accused persons by pre-
trial arrest and detention. The gravity of the offence
is an important factor to be taken into consideration
while granting such anticipatory bail, so also the
need for custodial interrogation, but these are only
factors that must be borne in mind that the Courts
concerned while entertaining a petition for grant of
anticipatory bail. He submitted that considering the
nature of the evidence, the applicant has made out a
case for grant of anticipatory bail.
7. Per contra, learned APP for the State
strongly opposed the said application on the ground
that commercial quantity of the contraband articles
are found in possession of the co-accused. The rigor
under Section 37 of the said Act, therefore
applicable. Moreover, the applicant is not resident of
the State of Maharashtra and therefore, there is
likelihood that he would not be available for trial
which would affect the case of the prosecution and
prays for rejection of the application. She also
placed reliance on the decision of the Apex Court in
the case of State of Haryana Vs. Samarth Kumar,
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wherein the Hon'ble Apex Court has considered the
aspect of the anticipatory bail and observed that the
decision in Tofan Singh Vs. State of Tamil Nadu,
perhaps at the time of arguing the regular bail
application or at the time of final hearing, after
conclusion of the trial.
8. After hearing the learned Senior counsel
for the applicant and learned APP for the State,
perused the investigation papers, it reveals that on
conducting the raid commercial quantity of
contraband article 'Ganja' of 1555 Kgs and 320 gms
was found in possession of the co-accused which is
seized by the police.
9. During the investigation, the Investigating
Officer recorded the relevant statement, the arrested
accused were also interrogated. As far as the
involvement of the present applicant is concerned,
except the allegation in the charge-sheet, no other
material was collected by the Investigating agency to
show the coalition between the present applicant
and the other co-accused. Even, there is no
statement of the co-accused also showing any
connection between the present applicant and the
other co-accused. As far as the allegation by the
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Investigating agency is concerned, that it is the
present applicant, who has placed the seized Ganja
and also made available the truck for transportation
of the same except the bare words there is no other
material to show this connection between the
present applicant and the other co-accused.
10. Admittedly, in view of decision of the
Hon'ble Apex Court in the case of State of Haryana
Vs. Samarth Kumar, wherein the Hon'ble Apex has
referred the judgment of Tofan Singh Vs. State of
Tamil Nadu reported in (2021) 4 SCC 1, wherein the
Hon'ble Apex Court has considered that as far as the
decision in Tofan Singh Vs. State of Tamil Nadu is
concerned, it would be helpful for arguing the
regular bail application or at the time of final
hearing after conclusion of the trial.
11. In Tofan Singh Vs. State of Tamil Nadu,
the Hon'ble Apex Court has held that the
confessional statement recorded under Section 67
will remain inadmissible in the trial of an offence
under the said Act against the co-accused. In the
case of State (by NCB) Bengaluru Vs. Pallulabid
Ahmad Arimutta and anr. reported (2022) 12 SCC
633, wherein also by referring the judgment of Tofan
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Singh Vs. State of Tamil Nadu, it is held that the
confessional statement recorded under Section 67
will remain inadmissible in the trial of an offence
under the said Act.
12. In the teeth of the aforesaid decision, if
the facts of the present case and the evidence
collected against the present applicant is concerned,
even there is no statement of the co-accused showing
the involvement of the present applicant in the
alleged offence. Besides this, the CDR reports are
not collected to show the involvement, there is no
money transaction between the present applicant
and the other co-accused. Thus, in view of the order
passed by the Hon'ble Apex Court in the case of
Vijay Singh Vs. State of Haryana in SLP
No.1266/2023, as there is absolutely no evidence,
the applicant has made out the case for enlarging the
anticipatory bail.
13. In the light of the above observations
and considering the fact that except the bare words
mentioned in the charges-sheet, no evidence is
collected in support of the said statement by the
Investigating Officer. The applicant has made out a
case for grant of anticipatory bail and as there is
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insufficient material available against the applicant.
Therefore, rigor under Section 37 of the Act and
after recording the satisfaction that at this stage,
there is no material to held the present applicant
guilty for the offence punishable under the
provisions of the NDPS Act. The application of the
applicant deserves to be allowed. Hence, I proceed to
pass the following order :
ORDER
(a) The criminal application is allowed.
(b) The applicant Mahalaxmi s/o Nagaraju
Cheluboyina shall be released on anticipatory
bail in the event of his arrest in connection with
Crime No.383/2022, registered with Police
Station Pardi, District - Nagpur, for the offences
punishable under Sections 8(c), 20(b)(ii), 25 &
29 Narcotic Drugs and Psychotropic Substances
Act, 1985, on executing PR bond in the sum of
Rs.50,000/- with one solvent surety in the like
amount.
(c) The applicant shall attend the concerned
Police Station Pardi, Nagpur, once in a week on
Sunday between 10:00 a.m. to 1:00 p.m. till
filing of the charge-sheet against him.
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(d) The applicant shall furnish his cell phone
number and address with the address proof
along with names of his two relatives and their
address along with the address proof.
(e) The applicant shall surrender his passport
if he is having before the Investigating Agency.
The applicant shall not leave the India without
prior permission of the District Court, Nagpur.
(f) The applicant shall not directly or
indirectly make any inducement, threat or
promise to any witnesses acquainted with the
facts of the case so as to decide him/her from
disclosing such facts to the Courts and any
Police Officers.
(g) The observations are primary in nature
only for the consideration of it and the trial
Court shall not influence by the same.
14. The Criminal application is disposed of
accordingly.
(SMT. URMILA JOSHI PHALKE, J)
Signed by: Mrs. PrityPrity
Gabhane
Designation: PA To Honourable Judge
Date: 12/08/2024 10:47:41
