Mohammed Ameen vs The State Of Telangana
2021 Latest Caselaw 1853 Tel

               THE HON'BLE JUSTICE G. SRI DEVI


               CRIMINAL PETITION No.1443 of 2021


ORDER:

The petitioners, who are accused Nos.1 and 2, filed the present

application under Sections 437 and 439 Cr.P.C., seeking to enlarge

them on bail in S.C.No.21 of 2021 on the file of the Metropolitan

Sessions Judge at Nampally, Hyderabad.

A charge sheet came to be filed against the petitioners for the

offences punishable under Sections 20, 28 and 29 of the N.D.P.S. Act,

1985. The petitioners were arrested on 21.01.2020 and since then they

are in jail.

The case of the prosecution, in brief, is that on receipt of

credible information, the Senior Intelligence Officer, D.R.I., along

with D.R.I. officials laid a trap at Pedda Amberpet Toll Plaza and

intercepted a Goods Carrier vehicle bearing No.MP 09 HF 0952,

which was covered by another number plate bearing No.AP 02 W

7747, passing through Pedda Amberpet Toll Plaza, Outer Ring Road,

Hyderabad, going towards Bidar. The D.R.I. officials found the

petitioners in the driver's Cabin and on enquiry they stated that the

vehicle is containing paddy husk. On search, the D.R.I. officials

found 44 blue coloured HDPE drums, containing Ganja. Total Ganja

in 44 HDPE drums was 1335.4 kgs. After following the due

procedure, the D.R.I. officials, seized the vehicles and contraband

(Ganja) under a cover of panchanama and also recorded the

statements of the petitioners under Section 67 of the N.D.P.S. Act and

arrested the petitioners on 21.01.2020 and remanded them to judicial

custody. After completion of investigation, the D.R.I. officials filed

final report, wherein the details of the criminal conspiracy so hatched

and executed by the petitioners are mentioned, which are as under:-

a. The petitioners hatched a criminal conspiracy along with others to procure Ganja and export inter-state. In pursuance of the said criminal conspiracy, the petitioners started from Bidar, Karnataka to Bhadrachalam, Telangana. They reached Bhadrachalam, procured Ganja and packed separately and then concealed in between the paddy husk in Goods Carriage heavy vehicle bearing registration No. MP 09 HF 0952.

b. The petitioners in their statements admitted that they were aware that the ganja concealed in between the paddy husk in Goods vehicle, being transported by them is a narcotic drug and transporting of the same is punishable under the provisions of the N.D.P.S. Act and they resorted to this activity for monetary gain. The petitioners in their statements stated that they were offered an amount of Rs.10,000/- upon successful delivery of the said ganja at the destination and further stated that all their expenses for food etc., were borne by Syed Asif.

c. The 2nd petitioner in his statement stated that he tied a tarpaulin on top of the cargo with rope. Further, the 1st petitioner in his statement stated that though he does not have driving license, he has driven the vehicle for monetary

gains. This shows the culpable mental state of both the petitioners.

d. Both the petitioners in their statements stated that the said Ganja was concealed in between paddy husk. The manner of concealment shows the extent of the planning in exporting Ganja Inter-state. The said Goods carriage heavy vehicle with Ganja concealed therein had already been driven by the 1st petitioner with the assistance of the 2nd petitioner from Bhadrachalam to the outskirts of Hyderabad. Thus, the circumstances strongly point to a criminal conspiracy to export ganja inter-state and act in furtherance of the conspiracy by the petitioners in transporting the same inter-state. Such a pre-planned conspiracy and action in furtherance of the same could be thwarted only due to the specific intelligence gathered by the officers of D.R.I. and prompt action taken by the officers of D.R.I.

Thus, it is alleged that the petitioners having complete

knowledge intentionally contravened the provisions of the N.D.P.S.

Act and thereby committed the offences punishable under Sections

20, 28 and 29 of the N.D.P.S. Act.

Heard Sri M.Ram Mohan Reddy, learned Counsel for the

petitioners and Sri Anil P.Tiwari, learned Senior Public Prosecutor

appearing for the respondent.

Learned Counsel for the petitioners would submit that the 1st

petitioner was the driver and the 2nd petitioner was the cleaner of the

vehicle. One Syed Asif is the owner of the vehicle, who had engaged

the petitioners on temporary basis to drive the lorry from

Bhadrachalam to Bidar, since his permanent driver fell sick. It is also

submitted that the said Syed Asif, who had engaged the petitioners,

is not made as an accused; that the petitioners are eking out their

livelihood by getting daily wage employment and they have no

capacity to do with the alleged offence. It is further submitted that

the petitioners are innocent persons and they have nothing to do with

the alleged offence and they were falsely implicated in the said crime.

It is also submitted that the petitioners are in jail since 21.01.2020,

entire investigation has been completed and a final report has been

filed, which was taken on file as S.C.No.21 of 2021.

Learned Special Public Prosecutor appearing for the

respondent would submit that the facts and circumstances of the case

indicates that the petitioners have actively participated in the

commission of offence and the admission made by the petitioners

prima facie show their wilful involvement in the criminal conspiracy

to transport and deal in Ganja. It is further submitted that this Court

after considering all the facts on record dismissed the earlier bail

application filed by the petitioners in Crl.P.No.5802 of 2020 vide

order dated 02.12.2020 and that the petitioners have not brought out

any new facts except stating that final report has been filed, which

was taken cognizance as Sessions Case. It is also submitted that

mere detention in custody for a period of more than six months is not

a valid ground to release the petitioners on bail in a crime registered

under the provisions of N.D.P.S. Act. It is further submitted that in

catena of judgments, the Apex Court held that 'mere filing of final

complaint ipso facto does not entitle to an accused to get an order of

bail in a case relating to offence under the N.D.P.S. Act." It is also

submitted that keeping in view the provisions of the N.D.P.S. Act, its

objectives and the fact that the Act has been legislated for the benefit

of the Society and that the public at large should have precedence

over the prayers of the petitioners, the bail application is liable to be

dismissed.

Admittedly, total 1335.4 Kgs. of Ganja has been seized from the

possession of the petitioners. Further, a perusal of the material on

record would show that the two bail applications filed by the

petitioners before the Metropolitan Sessions Judge, Nampally have

been dismissed vide orders dated 13.03.2020 and 24.04.2020 vide

Crl.M.P.No.748 of 2020 and Electronic M.P.No.59 of 2020 respectively.

Thereafter, the 2nd petitioner filed Crl.M.P.No.2331 of 2020 before this

Court seeking bail and later which was dismissed as withdrawn on

15.06.2020. Subsequently, both the petitioners have filed Criminal

Petition No.5802 of 2020 before this Court seeking bail on the ground

that the respondent officials have not followed the procedure laid

down under N.D.P.S. Act, more particularly under Sections 50 and 56

of the N.D.P.S. Act. After evaluating all the contentions raised by the

petitioners, on merits, the bail application filed by the petitioners was

dismissed by another co-ordinate Bench of this Court, vide order,

dated 02.12.2020 passed in Criminal Petition No.5802 of 2020.

Further, the Apex Court in the Constitution Bench judgments in the

matters of State of Punjab v. Baldev Singh1 and Vijaysinh

Chandubha Jadeja v. State of Gujarat2 has observed that compliance

of Section 50 of the N.D.P.S. Act can be looked into during trial.

Therefore, this aspect may not be looked into at the stage of grant of

bail.

In State of Tamilnadu vs. S.A.Raja3, the Apex Court held that

without there being any major change of circumstances, another fresh

application should not have been dealt with within a short span of

time unless there were valid grounds giving rise to a tenable case for

bail. The Court further held that the principles of res judicata are not

applicable to bail applications, but the repeated filing of the bail

applications without there being any change of circumstances would

lead to bad precedents. Filing of the charge sheet/final report does

not amount to a substantial change in fact-situation.

That apart, as is evident from the record more particularly the

statements of the petitioners recorded under Section 67 of the

N.D.P.S. Act would show that the petitioners were aware that the

Ganja concealed in between the paddy husk in goods carriage, being

transported by them is a narcotic drug and that they resorted to do

1 JT 1999 (4) SC 595 2 (2011) 1 SCC 609 3 2005 (8) SCC 380

the same for monetary gain. Further, the apprehension of the learned

Special Public Prosecutor appearing for the respondent that it is very

difficult to secure the presence of the petitioners, if they are released

on bail as they are residents of Karnataka State, cannot be ruled out.

Therefore, by taking into consideration the nature of serious

allegations made against the petitioners; the gravity of offence and

since there are no changed circumstances from the date of dismissal

of earlier bail applications, I am not inclined to grant bail to the

petitioners.

Accordingly, this Criminal Petition is dismissed. However,

since the petitioners are in jail, the learned Metropolitan Sessions

Judge at Nampally, Hyderabad, is hereby directed to dispose of

S.C.No.21 of 2021, in accordance with law, as early as possible,

preferably, within a period of six months from the date of receipt of a

copy of this order.

_____________________ JUSTICE G. SRI DEVI

28.06.2021 gkv/Gsn.