Vegi Srinivasa Rao vs The Senior Intelligence Officer
2021 Latest Caselaw 1648 Tel

           THE HONOURABLE JUSTICE G. SRI DEVI

             CRIMINAL PETITION No. 4041 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 and so far

the respondent authorities did not file the charge sheet. He also

submits that the petitioner is innocent, nothing to do with the

alleged offence and he has been falsely implicated. He further

submits that the material part of investigation has been completed

except filing of a formal charge sheet 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. He also submits that

the petitioner is having chronic kidney disease (State-V) along with

hyper tension and he was admitted in Gandhi Hospital,

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Secunderabad on 05.01.2021 and discharged on 08.01.2021. 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 and 06.05.2021. 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,

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

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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. It is also

submitted that the offences relating to N.D.P.S. substances have

deep rooted conspiracies and cause severe threat to society and

hence they need to be viewed seriously and if the petitioner is

released on bail, he may tamper with the evidence and also

influence the other connected persons, which may hamper the

progress of the investigation and may cause serious and irreparable

loss to the prosecution. In support of his contentions, learned

Special Public Prosecutor relied upon the following judgments of

the Apex Court as well as various High Courts:-

1. R.K.Naker v. Shabir Fida Hussain and another1

2. Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau2

3. Mohd. Khalid v. State of West Bengal3

4. Bharat @ Mamul and another v. State of Maharashtra4

5. State of Madhya Pradesh v. Kajad5

6. Durand Didier v. Chief Secretary, Union Territory of Goa6

(1991) 2 EFR 583

(2007) 2 SCC (Crl.) 618

(2002) 7 SCC 334

(1991) 4 Bom.CR 126

AIR 2001 SC 3317

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6. At the time when the matter was taken up for hearing,

learned Counsel for the petitioner would submit that the petitioner

is in jail since 11.12.2020 and till date no charge sheet/complaint

has been filed by the prosecution. He also submits that as per the

principles of law laid down by the Apex Court in Crl.A.No.699 of

2020, dated 26.10.2020, the petitioner is entitled for default bail

since the respondent failed to file the charge sheet within the

stipulated time. In reply to the said contention, learned Special

Public Prosecutor appearing for the respondent would submit that

entire investigation has been completed and the

respondent/complainant has filed a complaint before the

Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District,

vide S.R.No.3959, dated 04.06.2021.

7. In view of the rival submissions, the point that arises for

consideration is "Whether the petitioner is entitled to be enlarged

on bail, in view of the bar under Section 37 of NDPS Act?"

8. 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 psychotropic substance,

1989 (3) SCR 1025

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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, which are as under:-

1. In the year around 2019, A-1 had taken on rent a part of the premises of M/s. Sri Anjaneya Engingeering Works, near Ganesh Nagar, Subhash Nagar, IDA Jeedimetla and used the same to manufacture drugs illicitly.

2. In February, 2019, A-1 was introduced to Ismail and Ali, both based in Mumbai for manufacture of Mephedrone. Ali used to personally deliver or arrange for delivery of all the raw materials required to manufacture Mephedrone to A-1.

3. After manufacture of Mephedrone by A-1, initially Ali used to take delivery of Mephedrone and later on A-2 introduced to A-1 by Ali, used to take delivery of Mephedrone from A-1 in Hyderabad and deliver the same in Mumbai.

4. A-1 was paid in cash through Hawala for the Mephedrone manufactured and delivered by him.

5. An amount of Rs.12,49,000/- was seized at the residential premises of A-1, which are sale proceeds of Mephedrone of earlier consignments manufactured and delivered by A-1.

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6. A-1 clearly explained the process followed by him for manufacture of Mephedrone in his voluntary statement, dated 11.12.2020, recorded under Section 67 of the N.D.P.S. Act.

7. A-1 and A-2 were caught red handed when A-1 was handed over 3156 grams of Mephedrone to A-2 on 10.12.2020. The proceedings henceforth were recorded under the panchanama, dated 10.12.2020. A-1 and A-2 have affirmed the panchanama proceedings, dated 10.12.2020 in their voluntary statements.

8. An overview of premises used by A-1 clearly establishes that the same was used for manufacture of Mephedrone as it contained raw materials and equipment required for manufacture of Mephedrone. The same were seized under the panchanama, dated 10.12.2020. Further, certain raw materials and samples were also seized from the residential premises of A-1, under the panchanama, dated 10.12.2020.

9. Apart from the consignment of 3156 grams of Mephedrone caught red handed on 10.12.2020, A-1 had manufactured approximately 116 Kgs. of Mephedrone since November, 2019 and handed it over to the persons, who came from Mumbai and he received approximately Rs.89.00 lakhs as proceeds.

10. The two diaries and other documents recovered from the residential premises of A-1, contained crucial record of transactions pertaining to manufacture of Mephedrone

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and sales; record of phone contacts; information pertaining to certain chemical compounds used in the manufacture of Mephedrone; manufacturing process of Mephedrone and records of delivery of raw materials required for manufacture of Mephedrone. These crucial entries were made in the diaries by A-1 and the same were explained by A-1 in his voluntary statement.

11. A-2 was engaged by Ali, based in Mumbai to transport Mephedrone to Mumbai after collecting it from A-1 in Hyderabad and he was paid Rs.10,000/- for each transaction and each time A-2 carried around 4-5 kgs of Mephedrone from Hyderabad to Mumbai. In his voluntary statement, A-2 stated that it was his 5th or 6th trip to Hyderabad on 10.12.2020 and he was caught red handed by the officers of D.R.I. when he received 3156 grams of Mephedrone from A-1 near Sree Bakery, Temple Alwal, Secunderabad and also stated that he know some of the MD abusers through Zaid and sold 10 grams of powder to them and earned around Rs.20,000/- from it.

12. Voluntary statements of Shaik Saleem (LW.6), K.J.Venkateshwara Rao (L.W.16), K.Ram Tilak (L.W.17) and Atikamsetty Appa Rao (L.W.9), give credence to the fact that A-1 was manufacturing illicit drugs at the premises of M/s. Sri Anjaneya Engineering Works and that A-2 used to regularly go in an auto of L.W.6 to A-1 and collect the Mephedrone.

9. Before proceeding further, it is relevant to note Section 37 of

NDPS Act, which reads as follows:

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37. Offences to be cognizable and non-bailable .-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 2[ offences under section 19 or section 24 or section 27 A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

10. In State of Madhya Pradesh v. Kajad (5 supra), the Apex

Court held that the purpose for which the NDPS Act was enacted

and the menace of drug trafficking which intends to curtail is

evident from its scheme. A perusal of Section 37 of the Act leaves

no doubt in the mind of the Court that a person accused of an

offence, punishable for a term of imprisonment of five years or

more, shall generally be not released on bail. Negation of bail is the

rule and its grant is an exception under sub clause (ii) of clause (b)

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of Section 37(1). For granting bail, the Court must, on the basis of

the record produced before it, be satisfied that there are reasonable

grounds for believing that the accused is not guilty of the offences

with which he is charged and further that he is not likely to commit

any offence while on bail.

11. In State of Uttaranchal v. Rajesh Kumar Gupta7 and Union

of India v. Rattan Mallik alias Habul8, the Supreme Court

extensively discussed about scope and consequences failing to

adhere Section 37 of NDPS Act and concluded that Section 37 of

NDPS Act created an interdict to grant bail for an offence

punishable under various provisions of the Act, where a

commercial quantity of contraband is involved. According to

Section 37(1)(b) of NDPS Act, unless the Court records its

satisfaction that the petitioner did commit no offence and that he

would not commit similar offence again while on bail under Section

439 Cr.P.C in serious offences like the offence punishable under the

Act.

12. In Customs, New Delhi v. Ahmadalieva Nodira9, the Apex

Court held that the Court has to keep in mind two conditions i.e.,

the satisfaction of the Court that there are reasonable grounds for

(2007) 1 Supreme Court Cases 355

(2009) 2 Supreme Court Cases 624

2004 (1) JCC 662

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believing that the accused is not guilty of the alleged offence and

that he is not likely to commit any offence while on bail, the

conditions are cumulative and not alternative, the satisfaction

contemplated regarding the accused being not guilty has to be

based on reasonable grounds and the expression reasonable

grounds means something more than prima facie grounds and it

contemplates substantial probable causes for believing that the

accused is not guilty of the alleged offences.

13. Further, in Shailendra Kumar Gupta @ Shailu v. State of

U.P.10, the Allahabad High Court, while dismissing the bail

application for the offences under N.D.P.S. Act, held that "the

seriousness of cases under the N.D.P.S. Act have to be viewed like

this that in a murder case, the accused commits murder of one or

two persons, while those persons, who are dealing in narcotic

drugs are instrumental in causing death or in inflicting death-blow

to a number of innocent young victims, who are vulnerable, it

causes deleterious effects and deadly impact on the society".

14. In the present 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,

Crl.M.B.A.No.3515/2020, dt. 05.03.2020

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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.

15. In view of the principles laid down by the Apex Court in the

aforesaid judgments and 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.

16. Accordingly, the Criminal Petition is dismissed.

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

Petition shall stand closed.

_____________________ JUSTICE G. SRI DEVI

16.06.2021 gkv/Gsn

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