Kakani Hemanth Babu vs The Senior Intelligence Officer
2021 Latest Caselaw 1880 Tel

               THE HON'BLE JUSTICE G. SRI DEVI


          CRIMINAL PETITION Nos.3011 and 3082 of 2021


COMMON ORDER:


      Since, both the Criminal Petitions are filed, under Sections 437

and 439 of the Code of Criminal Procedure, 1973, seeking to enlarge

the petitioners-A-1 and A-2, on bail in NDPS S.C.No.51 of 2021 on the

file of the Metropolitan Sessions Judge, Nampally, Hyderabad,

arising out of F.No.DRI/HZU/48B/ENQ-86(INT-60)/2020 on the file

of the Directorate of Revenue Intelligence, Hyderabad Zonal Unit,

which was registered for the offences punishable under Sections 20,

28 and 29 of the N.D.P.S. Act, they are being disposed of by way of

this common order.


      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. A-1, who is the petitioner in Crl.P.No.3082 of 2021 was arrested

on 14.08.2020, whereas A-2, who is the petitioner in Crl.P.No.3011 of

2021 was arrested on 29.10.2020 and since then they are in jail.


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

credible information, on 14.08.2020 at about 00.45 hours, the D.R.I.

Officers, intercepted the Eicher Truck bearing registration No.AP-26-

TD-0520    beside    Ananthula    Ram    Reddy     Gardens,    Nalgole,

Hyderabad, being driven by A-1 on the instructions of A-2.          On

search, 496 HDPE packages were found with net weight of 1050 Kgs.
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of Ganja valued at Rs.2,62,50,000/-, which was secured in 39 HDPE

drums. After following the due procedure, the D.R.I. officials, seized

the vehicle and contraband (Ganja) under a cover of panchanama and

also recorded the statements of A-1 under Section 67 of the N.D.P.S.

Act and arrested him on 14.08.2020 and remanded to judicial custody.

A-1, in his voluntary statement, confessed his guilt of illicit transport

of Ganja on the instructions of A-2, who is the owner of the said

vehicle.   Therefore, summons were issued to A-2, his voluntary

statement was recorded as per the procedure and on his admission

that he was the owner of the said vehicle and A-1 transported the

Ganja on his instructions, he was arrested on 29.10.2020.          After

completion of investigation, the D.R.I. officials filed a final

report/complaint, wherein the details of the criminal conspiracy so

hatched and executed by the petitioners are mentioned, which are as

under:-


      a. A-2 hatched a criminal conspiracy with P.Srinivasulu Reddy
           to procure Ganja and export inter-state. In pursuance of the
           said criminal conspiracy A-1 started from Nellore, Andhra
           Pradesh to Anakapalle, Andhra Pradesh in Eicher Trick
           bearing No.AP-26-TD-0520 belonging to A-2. On reaching
           Anakapalle, A-1 provided the said truck to an unknown
           person after which Ganja was loaded in the said truck. The
           Ganja was concealed behind empty plastic crates in the
           Truck.

      b. A-1 and A-2 in their statements admitted that they were
           aware that the Ganja concealed in the truck being
           transported by A-1 is a narcotic drug and transporting of
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        the same is punishable under the provisions of the N.D.P.S.
        Act. A-1 admitted in his statement that he resorted to this
        activity for monetary gains.

     c. A-2 in his statement stated that he provided his truck for
        transportation of Ganja to P.Srinivasulu Reddy for a
        monetary consideration of Rs.2,00,000/- and also received
        Rs.1,00,000/- towards advance for the said activity.

     d. A-1 was caught while he was in possession of the Eicher
        Truck in a very indigenous manner. The Ganja was deftly
        concealed behind the load of plastic crates in the said truck.
        The manner of concealment shows the extent of the
        planning in exporting ganja inter-state. The said truck with
        ganja concealed therein had already been driven by A-1
        with the guidance of A-2 from Anakapally, Andhra Pradesh
        to Hyderabad. Thus, the circumstances strongly point to a
        criminal conspiracy to illicitly export Ganja inter-state and
        act in furtherance of the conspiracy by A-1 and A-2 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.

     e. A-1 and A-2 have illegally involved themselves in
        procurement, transport and export of Ganja.

     f. The offences which have a dire impact on the society are
        invariably done under a cloak of secrecy and due to the
        intelligence gathered and prompt action by the officers of
        D.R.I., the export of Ganja inter-state could be detected.

     Thus, it is alleged that the petitioners having complete

knowledge intentionally contravened the provisions of the N.D.P.S.
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Act and thereby committed the offences punishable under Sections

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


      Heard learned Counsel for the petitioners and Sri T.V.Subba

Rao, learned Senior Public Prosecutor appearing for the D.R.I.,

Hyderabad and perused the record.


      Learned Counsel for the petitioner in Criminal Petition No.3082

of 2021 would submit that the mandatory requirements of the

N.D.P.S. Act with respect to the investigation are not complied with

by the respondent authorities.        It is also submitted that A-1 is a

driver, whose services are engaged and he has nothing to do with the

goods, which were found in the truck and as the petitioner was asked

to go to Hyderabad for loading fish, he was coming to Hyderabad,

and, therefore, he has no conscious possession of contraband. It is

further submitted that entire investigation has been completed and

the D.R.I. officials filed final report/complaint before the

Metropolitan Sessions Judge at Nampally, Hyderabad, which was

taken on file as N.D.P.S. S.C.No.51 of 2021. It is also submitted that

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

judicial custody since 14.08.2020 and as such the family of the

petitioner are facing much hardship. It is further submitted that there

is no prospect for immediate trial in the near future on account of

Covid Pandemic.

Learned Counsel for the petitioner in Criminal Petition

No.3011 of 2021 would submit that the petitioner was falsely

implicated in the case and he has not committed any offence. It is

further submitted that on the alleged date of search and seizure, the

petitioner was neither present nor any incriminating material was

found against the petitioner. The petitioner was implicated as A-2

solely on the basis of the statement of A-1 and that it is well settled

principles of law that the statement recorded during the course of

enquiry is not admissible. Except the statement of co-accused there is

no incriminating material found against the petitioner. It is further

submitted that the petitioner is a businessman in fish trade and he

has engaged the vehicle from the owner of the crime vehicle

previously. It is further submitted that the petitioner is in judicial

custody since 29.10.2020. It is further submitted that entire

investigation has been completed and the D.R.I. officials filed final

report/complaint before the Metropolitan Sessions Judge at

Nampally, Hyderabad, which was taken on file as N.D.P.S. S.C.No.51

of 2021. It is also submitted that the petitioner is ready to abide by

any conditions that may imposed in the event of his enlargement on

bail.

Learned Special Public Prosecutor appearing for the D.R.I.

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 the trial Court after

considering all the facts on record dismissed the bail applications

filed by the petitioners 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 applications filed by the

petitioners are liable to be dismissed.

A perusal of the record would show that, 1050 Kgs. of

homogenous mixture of Ganja approximately valued at

Rs.2,62,50,000/- has been seized from the truck, which was driven by

A-1 on the instructions of A-2. Further, a perusal of the material on

record would show that after evaluating all the contentions raised by

the petitioners, the bail applications filed by them before the

Metropolitan Sessions Judge, Nampally have been dismissed vide

orders dated 19.01.2021 and 16.03.2021 passed in Crl.M.P.No.2884 of

2020 and Crl.M.P.No.606 of 2021 respectively. 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 behind the load of plastic crates in the Eicher Truck,

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

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

learned Special Public Prosecutor appearing for the respondent that it

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

is very difficult to secure the presence of the petitioners, if they are

released on bail, as they are residents of Andhra Pradesh 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, both the Criminal Petitions are dismissed.

_____________________ JUSTICE G. SRI DEVI

30.06.2021 Gsn/gkv.