Telangana High Court

Dharavath Aravind vs The State Of Telangana on 4 January, 2021

Bench: T.Vinod Kumar

          THE HON'BLE SRI JUSTICE T.VINOD KUMAR

             CRIMINAL PETITION No.6468 of 2020

ORDER:

This criminal petition, under Sections 437 and 439 of the

Code of Criminal Procedure, 1973, is filed seeking regular bail. The

petitioners herein are arrayed as accused No.1 and 2 (A-1 and A-2)

in Crime No.374 of 2020 on the file of P.S. Bhadrachalam Town,

Kothagudem District. The offences alleged against the petitioners

are under Sections 8(c) read with Section 20(b) of NDPS Act, 1985.

2. Heard learned counsel for the petitioners and learned Public

Prosecutor appearing for the respondent - State and perused the

record.

3. With the consent of the learned counsel appearing for the

parties, the criminal petition is taken up for hearing through Video

Conferencing in the virtual Court today, i.e. 22.12.2020.

4. Learned Counsel for the petitioners would submit that the

petitioners in particular the petitioner No.1 is the owner and driver

of the vehicle in which contraband substance (ganja) was being

transported after the said vehicle hired by accused No.4, while the

petitioner No.2 got into the car only to give company to the

petitioner/A-1 during their travel from East Godavari to

Hyderabad. Learned Counsel for the petitioner though sought to

urge for grant of regular bail to the petitioners on humanitarian

grounds by stating that petitioner No.1 is the sole bread winner for

his family and is eking out his livelihood by running the car on

hire, had agreed to carry the parcel weighing about 43 kgs., at the

behest of accused no.4 for being delivered at its destination. It is

submitted by the learned counsel that as the petitioners are in

judicial custody since, 22.10.2020, the family of the petitioner no.1

is placed in a pathetic situation, without any means for their

survival. Learned counsel would submit as a cab driver, the

petitioners are not required to know as to the contents of the

parcel, which they were required to deliver at its destination.

Learned Counsel for the petitioner would also submit that the

offending material was only about 43 kgs and if apportioned

between the petitioners, the quantity found and seized is in excess

of permitted commercial quantity only marginally. Learned

Counsel for the petitioner would further submit that the

respondent authority while seizing the narcotic substance and

apprehending the petitioners did not comply with the mandatory

requirement of Section 42 and 50 of NDPS Act and as such the

entire process stands vitiated. Learned counsel would further

submit that there are no antecedents of petitioners involvement in

similar offences earlier. It is also submitted that there is no

material to connect the petitioners with the offence except the

confessional statement said to have been given to the investigating

agency. Learned counsel would submit that since, all the

witnesses were examined and their statements recorded by the

investigating authority, the petitioners may be granted bail. In

support of his submissions learned counsel has placed reliance on

the order of a coordinate bench of this court in Crl.P. No. 6634 of

2020.

5. Per contra, the learned Public Prosecutor by drawing

attention of this Court to the judgment of the Hon'ble Apex Court

in State of Kerala v. Rajesh1, would submit that NDPS Act being

a special enactment, granting of bail for contravention of

1 2020 SCC Online SC 81.

provisions of the Act, is circumscribed by the provisions of Section

37 of NDPS Act.

6. Learned Additional Public Prosecutor would submit that

before this Court before granting bail to the accused involved in

the offences under NDPS Act, is required to record its satisfaction

of existence of reasonable grounds namely i) Court should be

satisfied that there are reasonable grounds for believing that the

petitioners are not guilty of such offence ; and ii) petitioners are

not likely to commit any offence while on bail. Learned Additional

Public Prosecutor would submit that there is no plausible

explanation forthcoming from the petitioner for traveling all the

way from the native place in Nalgonda District to East Godavari

District and carrying the offending material from East Godavari to

Hyderabad at the behest of A-4 unless and until they are involved

in the above offence. But for the interception and search of the

vehicle by the respondent authority, whereat the contraband

material was found and seized, the petitioner would have

continued with same activity.

7. Learned Additional Public prosecutor would further submit

that investigation into the crime registered is in progress and as of

today six witnesses are examined. It is further submitted by the

learned Additional public prosecutor that the co-accused no. A.3

and A.4 in the above crime are still absconding and FSL report is

also awaited. Further, the learned Additional Public prosecutor

would submit that as per the confessional statement given by the

petitioners to the respondent investigating authority as recorded in

remand report, it would be clear that the petitioners were involving

themselves in commission of the offence under NDPS Act, to earn

more money in easy way, by undertaking transport of ganja

secretly, thus, the claim of innocence being pleaded now cannot

be accepted. In so far as the other submission of the learned

counsel for the petitioners about non compliance mandatory

requirement of Section 42 and 50 of NDPS Act, is concerned,

learned Additional Public prosecutor would submit that the said

provisions do not stand attracted since, no personal search of the

petitioners was taken and the offending substance was found in

the vehicle during search. In support of the above submission,

learned Additional Public Prosecutor placed reliance on the Apex

court judgement in Union of India v. Ram Samujh and Ors 2.

8. Having given due consideration to the submissions made as

above, and in view of the law laid down by the Apex Court, this

Court is firstly required to satisfy itself as to whether reasonable

grounds exists for grant of bail or not. The usage of term

'reasonable grounds' in the context of non-obstante clause with

which Section 37 of NDPS Act, signifies that it is not merely prima

facie case but something more, i.e., substantial probable causes

for believing that the accused is not guilty of the alleged offence. In

the facts of the present case, the petitioners were found possessing

the prohibited (narcotic) substance while transporting the same.

Further, the confessional statement given by the petitioners to the

investigating authority upon seizure would clearly go to show that

the petitioners were involved in dealing with the narcotic

substance to earn money in easy way, though not being involved /

caught by the law enforcing authority any time earlier. Though, it

is submitted that the family of the petitioner no.1 is suffering

severely, it is only the petitioner who is to be blamed for such

2 (1999) 9 SCC 429.

suffering. The petitioners without realizing that as a result of their

acts in dealing with narcotic substance, many families are

suffering due to the ill effects of the narcotic substance, having a

lasting effect on the health, which is more harsh to bear than loss

of a member of the family upon being murdered. At this point, it is

apposite to refer to the observations of the Hon'ble Supreme Court

in Ram Samujh case (supra), wherein it is observed that -

"It should be borne in mind that in murder case,

accused commits murder of one or two persons, while

those persons who are dealing in narcotic drugs are

instruments in causing death or in inflicting death blow

to number of innocent young victims, who are

vulnerable: it causes deleterious effects and deadly

impact on the society; they are a hazard to the society;

even if they are released temporarily, in all probability,

they would continue their nefarious activities of

trafficking and/or dealing in intoxicants clandestinely.

Reason may be large stake and illegal profit involved."

9. In the light of the above, and considering the facts of the

case, this court does not find that the petitioners have made out

reasonable grounds to the satisfaction of this court for grant of

bail, as grant of bail under special Acts like NDPS Act, is an

exception, while negation of bail is the rule, as held in State of

Madhya Pradesh v. Kajad3.

10. Further, even the other submission of the learned counsel

for the petitioner with regard to non-compliance mandatory

requirement of Section 42 and 50 of the NDPS Act, is concerned,

3 (2001) 7 SCC 673

the same is also without any substance in view of the authoritative

pronouncement of the Hon'ble Supreme Court in State of