Madras High Court
R.Pechiyammal vs The Inspector Of Police on 15 July, 2021
Crl.O.P.No.4926 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 09.03.2022 Pronounced on : 14.03.2022
Coram::
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Criminal Original Petition No.4926 of 2022
1. R.Pechiyammal,
2. M.Saravanakumar, ... Petitioners/Accused 2 & 5
/versus/
The Inspector of Police,
M-4, Redhills Police Station,
Chennai.
(Crime Number: 3886/2020) ... Respondent/Complainant
Prayer: This Criminal Original Petition is filed under Section 439 of Cr.P.C.,
praying to enlarge the petitioners on bail pending trial in C.C.No.107 of 2021 on
the file of the Special Judge I Additional Special Court for NDPS Act.
For Petitioners : Mr.V.K.Sathiamurthy
For Respondent : Mr.G.V.Kasthuri,
Additional Public Prosecutor
ORDER
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Crl.O.P.No.4926 of 2022
The petitioners are 2nd and 5th accused in C.C.No.107/2021 pending
on the file of Special Court for N.D.P.S cases at Chennai. These two petitioners
were arrested on 17/10/2020, in connection with seizure of 400.700 kgs of ganja
kept in 13 bags kept concealed in the false cavity of a tanker lorry bearing
Registration No.AP-16-TB-0041. The driver of the tanker lorry was arrested on
06/10/2020. These two petitioners and others were arrested on 17/10/2020.
2. The Petition for bail is filed on the ground that they are innocent
persons hailing from Theni District whereas, the contraband was alleged to have
been seized on 06/10/2020 near M.A.Nagar Toll Gate, Gummidipoondi near
Chennai. The F.I.R registered on 06/10/2020 in Crime No.3886 of 2020 was only
against the first accused, who was the driver of the tanker lorry. Later, the
prosecution has added 5 others as accused one after another based on the statement
of the accused. These petitioners were taken into custody on 15/10/2020 from
their house without any warrant and kept under illegal custody till 17/10/2020.
They were shown arrest after petition sent to Higher Authorities. No recovery of
any contraband from their possession. No evidence to show they were involved in
ganja transport. Despite the fact that nothing incriminating recovered from them,
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Crl.O.P.No.4926 of 2022
these petitioners were arrested and kept in judicial custody for nearly 17 months.
3. The Learned Counsel for the petitioners relying upon the
Newspaper report about the seizure of ganja published on 07/10/2020 and the
photograph showing the first accused and the Covid-19 test report of the
petitioners to emphasis that they underwent swab test on 16/10/2020 and got the
test report on the same day, submitted that in fact, the petitioners took Covid-19
test on 16/10/2020 and received the report on 17/10/2020. However, the Regional
Medical Officer has replied to the RTI enquiry, that the swab test for the
petitioners was taken on 17/10/2021 and on the same day report received. This
establishes that the respondent after taking the petitioner into illegal custody, had
manipulated the date and time of arrest to suit their convenience. Being no way
connect with the alleged seizure of ganja from the first accused, pray for bail.
4. To buttress his submissions, the Learned Counsel for the
petitioners rely upon the judgment of the Supreme Court in Bharat Chaudhary
-vs- Union of India reported in 2021 SCC Online SC 1235.
5. The respondent has filed counter, wherein it is stated that, based on
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Crl.O.P.No.4926 of 2022
specific information, that a person driving the vehicle bearing registration No.AP-
16-TB-0041 is transporting ganja clandestinely, surveillance was mounted on
06/10/2020 near M.A.Nagar, Toll Gate, Gummidipondi. At about 15.00 hrs, a
tanker lorry came very fast from Gummudipoondi proceeding towards Redhills.
The vehicle was stopped and searched and found 13 bags of ganja totally weighing
400.700 kgs in the secret chambers of the tank. Same was seized under mahazar.
Based on the confession of A-1 and on examination of the phone call details, the
investigation revealed that the first accused had transported the contraband from
Anagapalli, Andhra Pradesh as per the direction and monitoring of one Sunder (A-
3) to be delivered at Thiruchy to Pechiyammal (A-2), Muthusami (A-4 died),
Saravanakumar (A-5) and Ravichandran (A-6).
6. Since A-1 did not deliver the contraband within the expected time,
A-2, A-4, A-5 and A-6 came to Chennai on 17/10/2020 in search of the supplier
(A-1). When they reached Koyambedu, Sunder (A-3) came to Koyambedu and
joined them. These accused were arrested at Koyambedu on 17/10/2020.
7. Narrating the sequence of events as stated above, the Learned
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Crl.O.P.No.4926 of 2022
Additional Public Prosecutor submitted that, these petitioners along with other
accused persons conspired to transport illegally 400.700 Kgs of ganja from
Andhra Pradesh. They engaged A-1 to transport the contraband concealed in the
secret chamber of the tank. The information given by A-1 in his statement lead to
trace the other accused, who were involved in the said crime. Since, the quantity
is of commercial quantity and the evidence collected discloses the involvement of
these petitioner in the crime, final report has been laid on completion of
investigation. In the said circumstances, the petitioners are not entitled for bail
since they don’t satisfy the twin conditions imposed under Section 37 of the
N.D.P.S Act.
8. Heard the Learned Counsel for the petitioners and the Learned
Additional Public Prosecutor for the respondent. Records perused.
9. This is a case under NDPS Act and the contraband alleged to have
been seized is ganja about 400.700 kgs which is a commercial quantity as per the
Act. Once the contraband is of commercial quantity the twin conditions envisaged
under section 37 of the N.D.P.S Act, for grant of bail has to be satisfied.
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10. Relying upon the newspaper report, the Covid-19 test report and
the complaint about abduction by plain clothes men on 15/10/2020, the Learned
Counsel for the petitioner contends that the case is a false case and the petitioners
were taken into custody on 15/10/2020 itself from their residence at Theni District
and shown arrest as if they were arrested on 17/10/2020 at Koyambedu, Chennai.
From 15th October 2020 till 17th October 2020, they were in fact kept under illegal
custody. Further, no incriminating documents or materials recovered from them.
11. In Bharat Chaudhary -vs- Union of India case cited supra, the
apex court has held that,
“....Most importantly, none of the tablets were seized
by the prosecution during the course of the search conducted,
either at the office or at the residence of A-4 at Jaipur, on
16th March, 2020. Reliance on printouts of Whatsapp
messages downloaded from the mobile phone and devices
seized from the office premises of A-4 cannot be treated at
this stage as sufficient material to establish a live link
between him and A-1 to A-3, when even as per the
prosecution, scientific reports in respect of the said devices is
still awaited.
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11. In the absence of any psychotropic substance
found in the conscious possession of A-4, we are of the
opinion that mere reliance on the statement made by A-1 to
A-3 under Section 67 of the NDPS Act is too tenuous a
ground to sustain the impugned order dated 15th July, 2021.
This is all the more so when such a reliance runs contrary to
the ruling in Tofan Singh vs-State of Tamil Nadu. The
impugned order qua A-4 is, accordingly, quashed and set
aside........”
12. However, this Court is of the firm view that, when the petitioners
are charged for conspiracy and the statement of the co-accused implicate these
petitioners in the crime, the presumption of culpable state of mind and deemed
possession are to be taken as prima facie case to prosecute them for offence
involving commercial quantity of narcotic drug. Hold that, the petitioners fail to
satisfy the twin conditions imposed under Section 37 of the NDPS Act, 1985 to
consider the bail petition.
13. On perusal of the records indicates that the contraband intercepted
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and seized was meant for the present petitioners and two others. These petitioners
have through A-3, had arranged for the transport and delivery of the goods to
them. However, before delivery, the respondent have intercepted the vehicle and
seized the contraband weighing about 400.700 kgs. The evidence collected during
the investigation provides material to convict them, if proved. Further, if the
petitioners are released on bail, misuse of the liberty not ruled out.
14. The observation made above is confined to the bail application.
Same shall have no influence on the trial Court, for final disposal after trial.
15. In the light of the above fact and reasons, this Criminal Original
Petition is dismissed.
14.03.2022
Index :Yes/No.
Speaking order/Non Speaking order
To:-
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Crl.O.P.No.4926 of 2022
1. The Special Judge – I, Additional Special Court for NDPS Act, Chennai.
2. The Inspector of Police, M-4, Redhills Police Station, Chennai.
3. The Central Prison, Puzhal, Chennai.
4. The Section Officer, V.R.Section, High Court, Madras.
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DR.G.JAYACHANDRAN,J.
bsm
Pre-delivery order made in
Crl.O.P.No.4926 of 2022
14.03.2022
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