Vegi Srinivasa Rao vs The Senior Intelligence Officer,
2021 Latest Caselaw 2398 Tel

           THE HONOURABLE JUSTICE G. SRI DEVI

             CRIMINAL PETITION No. 5391 of 2021

ORDER:

1. This Criminal Petition is filed, under Sections 437 and 439 of

the Code of Criminal Procedure, 1973, seeking to grant bail to the

petitioner/A-1 in F.No.DRI/HZU/48A/ENQ-122(INT)/2020 on the

file of the Directorate of Revenue Intelligence, Zonal Unit,

Hyderabad.

2. In brief, the case of the prosecution is that basing on specific

intelligence that the petitioner, who is residing at H.No.1-8-

55/13/24, MES Colony, Venkatapuram, Alwal, Hyderabad, has

involved in the illicit manufacture and sale of Mephedrone, a

psychotropic substance specified under the N.D.P.S. Act, 1985, and

he could be in possession of Mephedrone, which is likely to be

handed over to some persons near Sree Bakery, Temple Alwal,

Secunderabad, the officers of D.R.I., Hyderabad Zonal Unit, along

with independent witnesses reached Sree Bakery, Temple Alwal,

Secunderabad, on 10.12.2020 and laid wait. At that time, the

petitioner came on a two-wheeler of Honda Shine bearing

Registration No.AP-10-AL-0802 and stopped the vehicle opposite to

the said Sree Bakery. After few minutes, A-2 (Sayyed Ashraf) came

in an auto rickshaw bearing No.TS-09-UA-6518, got down and met

the petitioner and received a white coloured plastic cover package

from him and that the D.R.I. Officers intercepted the said persons.

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On enquiry, the petitioner and A-2 said to have confessed their guilt

of illicit manufacturing, selling, purchasing and transporting of 3.156

Kgs. of Mephedrone, a psychotropic substance under N.D.P.S. Act,

which is valued at Rs.63.12 lakhs and that the D.R.I. Officers, seized

the said contraband under the cover of panchanama; arrested the

petitioner and A-2 on 11.12.2020 and remanded to judicial custody.

3. Heard Sri Gopalakrishna Kalanidhi, learned Counsel

appearing for the petitioner, Sri T.V.Subba Rao, Special Public

Prosecutor for D.R.I., Hyderabad and perused the record.

4. Learned Counsel for the petitioner would submit that the

petitioner has been in judicial custody since 11.12.2020. The main

contention of the learned Counsel for the petitioner is that the Apex

Court has categorically observed that in cases where statutory

remand period of 180 days was completed, it is the duty of the Court

to grant bail irrespective of the fact whether the investigating

authority filed charge sheet or not and as such, the petitioner is

entitled for bail. In support of his contention, he relied on the

judgment of the Apex Court in M.Ravindran v. State of Madras1 .

The learned Counsel also submits that the petitioner is having

chronic kidney disease (State-V) along with hypertension and that

he is also having bilateral polycystic kidney disease with multiple

Crl.A.No.699 of 2020

GSD, J Crlp_5391_2021

hepatic cysts. He further submits that the entire investigation has

been completed and charge sheet also filed and as such tampering

the prosecution evidence would not arise. He further submits that

the petitioner is the sole bread earner of his family and in view of his

incarceration in jail, his family is on streets. The petitioner

undertakes that he shall make himself available for interrogation

before the concerned Investigating Officer as and when required and

he shall not act in any manner which will be prejudicial to fair trial.

The petitioner is a permanent resident of Venkatapuram, Alwal,

Hyderabad, and as such, the question of his absconding would not

arise. He also submits that the petitioner is ready to abide by any

condition that may be imposed in the event of his enlargement on

bail.

5. By filing Counter, learned Special Public Prosecutor for D.R.I.,

Hyderabad, would contend that after considering the facts of the

case, the trial Court has rightly dismissed the bail applications filed

by the petitioner on 12.01.2021, 17.02.2021, 25.03.2021, 19.04.2021,

06.05.2021 and 02.07.2021. It is further submitted that the records

show that a prima facie case was made out against the petitioner in

terms of the provisions of the N.D.P.S. Act. It is also submitted that

the facts of the case on record and the admission made by the

petitioner and A-2, prima facie show the involvement of the accused

in illicit manufacturing of "Mephedrone" a psychotropic substance,

GSD, J Crlp_5391_2021

which is in violation of the provisions of the N.D.P.S. Act. The

petitioner had actively participated in the commission of the offence

and was one of the active parties to the criminal conspiracy to

commit an offence under the N.D.P.S. Act and abetted in the

commission of the offence. It is further submitted that the analysis

test report, dated 20.05.2021, in respect of the samples of

Mephedrone, which were forwarded to C.F.S.L., Hyderabad, would

show that Mephedrone has been detected in Exhibits 1 to 4 and 6

and Ephedrine has been detected in Exhibits 5 and 7. Apart from

that, he also submits that since the Investigating Authority has filed

charge sheet within the stipulated time, the question of granting

statutory bail to the petitioner would not arise.

6. In Pragyna Singh Thakur v. State of Maharashtra2 the Apex

Court after considering the provisions of Section 167 (2) of the

Cr.P.C. and the case laws on the subject, held as under:

"54. There is yet another aspect of the matter. The right under Section 167 (2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is

(2011) 10 SCC 445

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filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt v. State3. The reasoning is to be found in paras 33 to 49."

7. In Uday Mohanlal Acharya vs State Of Maharashtra4, the

Apex Court categorically held that "It is true that the right of an

accused to be released on bail for default in submission of challan is

a valuable and indefeasible right, but by the time the court is

considering the exercise of the said right if a challan is filed then the

question of grant of bail has to be considered only with reference to

merits of the case under the provisions of the Code relating to grant

of bail after filing of the challan which view is consistent with the

view expressed by different Constitution Benches of this Court in

several decades in connection with the issuance of writ of habeas

corpus as well as for grant of bail".

8. The Apex Court has categorically held that if a challan is filed

then the question of grant of bail has to be considered only with

reference to merits of the case. Once the charge sheet had been filed,

the Magistrate was not to consider the application for bail under

Section 167 (2) of Cr.P.C.

(1994) 5 SCC 410

(2001) 5 SCC 453

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9. The judgment relied upon by the learned Counsel for the

petitioner is not applicable to the facts of the present case since the

said case pertains to the indefeasible right of the accused if the

prosecution failed to file the challan/charge sheet within the

stipulated time. But in the instant case, the petitioner has been

arrested on 11.12.2020 and the respondent/complainant filed charge

sheet on 04.06.2021, which was not disputed by the learned Counsel

for the petitioner. Therefore, 176 days after arrest of the petitioner,

the respondent/complainant has filed charge sheet against the

accused i.e., within the stipulated period of 180 days. In view of the

above discussion and the dictum of Constitution Bench of the Apex

Court in Sanjay Dutt's case (3 supra) and Pragyna Thakur's case (2

supra) and since the charge sheet has been filed within the statutory

period of 180 days, there is no force in the contention of the learned

Counsel for the petitioner that the petitioner is entitled for statutory

bail. Hence, this Court is of the opinion that the petitioner is not

entitled to statutory bail.

10. Coming to the merits of the case, as seen from the contents of

charge sheet, the petitioner and A-2 were participants in a criminal

conspiracy and acted in furtherance of such conspiracy, by illicitly

manufacturing, possessing, selling, purchasing, transporting,

warehousing and exporting inter-state of Mephedrone, a

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psychotropic substance, without having valid licence/permit,

thereby violated the provisions of Section 8 of the N.D.P.S Act. The

details of the criminal conspiracy so hatched and executed are

clearly mentioned in the complaint.

11. In the instant case, the quantity involved is 3156 grams of

Mephedrone worth Rs.63,12,000/-. Further, the evidence collected

during the course of investigation, clearly proves that the petitioner

has involved in illicit manufacturing and sale of Mephedrone, which

is a narcotic substance, in order to gain huge profits. When the

petitioner is indulged in such serious crime, he is disentitled to be

enlarged on bail in view of the bar contained under Section 37 of the

N.D.P.S. Act. Since the petitioner is having complete knowledge

intentionally contravened the provisions of the N.D.P.S. Act, and

thereby committed offences punishable under N.D.P.S. Act, I do not

find any ground to enlarge the petitioner on bail, though he is

undergoing long period of incarceration, which is not a ground to

enlarge him on bail.

12. The contention of the learned Counsel for the petitioner is that

the petitioner is entitled bail on medical grounds as he is suffering

from chronic kidney disease. Regarding the ailment of the

petitioner, Discharge Card issued by the Gandhi Hospital,

Secunderabad, reveals that the petitioner has already discharged

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from the hospital on 08.01.2021. However, no document whatsoever

has been filed along with this Criminal Petition with regard to the

present health condition of the petitioner.

13. Accordingly, the Criminal Petition is dismissed.

14. Miscellaneous petitions, if any, pending in this Criminal

Petition shall stand closed.

____________________ JUSTICE G. SRI DEVI 17.08.2021 gkv/Gsn