Madras High Court

Nagalakshmi vs State Rep. By on 25 September, 2023

                                                           1

                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              (Criminal Jurisdiction)

                                                   Dated: 25/09/2023


                                        THE HON'BLE MR JUSTICE G.ILANGOVAN

                                            Crl.OP(MD)No.17001 of 2023


                     Nagalakshmi                                : Petitioner/A6

                                                          Vs.

                     State rep. by
                     The Inspector of Police,
                     Town West Police Station,
                     Dindigul District.
                     (In Crime No.568 of 2022)                  : Respondent/Complainant

For Petitioner : Mr.M.Subash Babu Senior Counsel for M/s.Subash Law Office For Respondent : Mr.S.Ravi Additional Public Prosecutor

PETITION FOR BAIL Under Sec.439 of Cr.P.C.

PRAYER:-For Bail Crime No.568 of 2022 on the file of

the respondent police.

ORDER: The Court made the following order:-

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The petitioner/A9, who was arrested and remanded to

judicial custody, on 02/01/2023 for the offences

punishable under sections 8(c) r/w 20(b)(ii)(C) and

sections 25 and 29(1) of the NDPS Act, in Crime No.568 of

2020 on the file of the respondent police, seeks bail.

2.The case of the prosecution is that on secret

information, the police party namely the de-facto

complainant along with his team of police officials, went

to the house of one Suresh Kumar in search of the

contraband at about 06.00 pm, on that day they found 2

two wheeler along six persons. The police informer

identified the accused and later, the above said persons

were apprehended. Among six persons, one person fled away

from that place. Others were secured and on enquiry they

revealed their name as Suresh Kumar, Devayani, Vignesh @

Vikee, PandiSelvam and Ajaykannan. The name of the

escaped person was found as Muthu Irul. Search was made

and they were found in possession of 215 kgs of Ganja

worth about Rs.3,15,000/-. On further enquiry, they

revealed that Muthu Irul purchased the contraband from

some unknown persons in Andhara Pradesh. They were

arrested and further processes were undertaken as per the

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rules and procedure. This petitioner was arrested and

remanded to judicial custody. Finding her involvement in

the course of investigation. She filed several

applications before this court and that application came

to be dismissed considering the gravity of the offence.

3.Crl.OP(MD)No.12965 of 2023 was filed by this

petitioner stating that the contraband that was recovered

from the house of the petitioner is only 16 kgs.

According to her, no commercial quantity involved. That

contention was rejected on the ground that huge quantity

was purchased from Andhras Pradesh, transporting the same

to Tamil Nadu and thereafter, separating the total

quantity and selling. So, it was found that finding that

in the course of very same transaction only, 16 kgs was

recovered from this petitioner. The contention that it

will not come under the commercial quantity was rejected.

4.Now this petition has been filed with a new ground

that the house from which the above said quantity of

contraband was seized belongs to her father. She was

living in that house. According to her, mere living in

the house from where the contraband is seized, will not

prima facie indicate her involvement.

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5.So the question, which arises for consideration is

whether the new ground can be taken into account.

6.This court on further enquiry with the learned

Senior Counsel appearing for the petitioner as to the

reason for her living in the house of her father. But no

acceptable reason or explanation was able to be given by

the petitioner. Per contra, he will be referring to the

order of the Hon'ble Supreme Court in the case of Suhail

Ahmed Vs. State Rep through the Inspector of Police (SLP

(Criminal)No.6668 of 2023, dated28/07/20230) for the

purpose of argument that if no recovery is made from a

particular person, then bail may be favorably considered.

But no such broad proposition has been made by the

Hon'ble Supreme Court in the above said order. In the

above said case, the prosecution was relying upon some

banking transactions and telephonic conversation between

them. That cannot be taken as precedent for recording the

finding in all the cases when no recovery is effected,

then bail is automatic.

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7.I am afraid that the order of the Hon'ble Supreme

Court in the above said case can be extended to all

cases. So this contention is rejected outright. When

admittedly the Ganja has been seized from the house where

the petitioner was residing, then she has to offer the

explanation. But no acceptable explanation is offering.

8.He would rely upon the judgment of the Hon'ble

Supreme Court reported in the case of Mohd Muslim @

Hussain Vs. State (NCT of Delhi) [(2023)2 MJ (Crl) 549

(SC). He would refer the Para 17. There was a factual

ground taken in the account by the Hon'ble Supreme Court.

Para 20 reads as under:-

“20. The standard to be considered

therefore, is one, where the court

would look at the material in a broad

manner, and reasonably see whether the

accused’s guilt may be proved. The

judgments of this court have,

therefore, emphasized that the

satisfaction which courts are expected

to record, i.e., that the accused may

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not be guilty, is only prima facie,

based on a reasonable reading, which

does not call for meticulous

examination of the materials collected

during investigation (as held in Union

of India v. Rattan Malik19). Grant of

bail on ground of undue delay in trial,

cannot be said to be fettered bySection

37 of the Act, given the imperative

of Section 436A which is applicable to

offences under the NDPS Act too (ref.

Satender Kumar Antil supra). Having 19

(2009) 2 SCC 624 regard to these

factors the court is of the opinion

that in the facts of this case, the

appellant deserves to be enlarged on

bail.

9.Para 19 is also relevant for consideration. Para

19 reads as under:-

“19. A plain and literal interpretation of the

conditions under Section 37 (i.e., that Court should be

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satisfied that the accused is not guilty and would not

commit any offence) would effectively exclude grant of bail

altogether, resulting in punitive detention and unsanctioned

preventive detention as well. Therefore, the only manner in

which such special conditions as enacted under Section

37 can be considered within constitutional parameters is

where the court is reasonably satisfied on a prima facie

look at the material on record (whenever the bail

application is made) that the accused is not guilty. Any

other interpretation, would result in complete denial of the

bail to a person accused of offences such as those enacted

under Section 37 of the NDPS Act.

10.Para 16 reads as follows:-

                                             “16.        In       the         most       recent

                                      decision, Satender              Kumar       Antil        v.

                                      Central                        Bureau                    of

                                      Investigation16 prolonged                incarceration

                                      and      inordinate         delay       engaged        the

attention of the court, which considered

the correct approach towards bail, with

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respect to several enactments,

including Section 37 NDPS Act. The court

expressed the opinion that Section

436A(which requires inter alia the

accused to be enlarged on bail if the

trial is not concluded within specified

periods) of the Criminal Procedure Code,

1973 would apply:

“We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.”

11.By pointing out this judgment, it was contended

on behalf of the petitioner that ever-since from the date

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of arrest namely from 31/12/2022, she is in custody. He

is also HIV Patient. The trial could not be taken in the

immediate future. So on that account, bail is requested.

Now in the light of the above said, now let us go to the

materials available on record against the petitioner.

12.For that purpose, CD file is called for and

perused. During the course of investigation, it was

found that A1, A2 and A6 purchased Ganja from Andhra

Pradesh. Totally 37 kgs of Ganja was purchased. They