Nunavath Mancha vs The State Of Telangana
2022 Latest Caselaw 1105 Tel

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

               CRIMINAL PETITION No.1892 of 2022

ORDER:

This petition is filed under Sections 437 and 439 of Code of

Criminal Procedure, 1973 (for short "Cr.P.C") seeking regular bail to the

petitioner/A.1 in connection with Crime No.256 of 2020 of

Bhadrachalam Town Police Station, Bhadradri Kothagudem District,

wherein the petitioner is alleged to have committed the offence

punishable under Section 8(c) read with 20(b) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short, 'the NDPS Act').

2. Learned counsel for the petitioner submits that crime was

registered on 08.07.2020 and petitioner was arrested on 15.12.2021, only

after lapse of 17 months. He submits that entire investigation is

completed and F.S.L. report is also received. It is submitted that nothing

has been recovered from the possession of the petitioner and police

recovered the alleged ganja of 266 kgs. from the vehicle belonging to the

petitioner, which he has given to some person for his use. Basing on his

confession, the petitioner cannot be arrayed as accused and he relied on

the judgment of Apex Court in State by (NCB) Bengaluru v. Pallulabid

Ahmad Arimutta and another (Petition for Special Leave to Appeal LK, J

(Crl.)No.242 of 2022 arising out of Diary No.22702 of 2020), wherein it

is observed that 'no substantial was available with the prosecution at the

time of arrest to connect the respondents with the allegations levelled

against them of indulging in drug trafficking'. Learned counsel submits

that the petitioner, who is working as a Government Teacher, is very

much available and after 1 ½ year from the date of registering the

offence, he was arrested, which shows that the petitioner has been

implicated in this case falsely. It is submitted that while conducting the

search and seizure, police failed to follow the procedure contemplated

under the provisions of NDPS Act. In view of the infirmities, the

petitioner is entitled for bail.

3. Learned counsel submits that in the remand report, it is mentioned

that the petitioner alleged to have committed the offence under Section

8(c) read with 2(b) of the NDPS Act, which speaks about only

transporting of any narcotic drug or psychotropic substance. He submits

that the offence ought to have been mentioned as Section 8(c) read with

20(c) of the NDPS Act, since at the time of search and seizure, the police

have knowledge about the quantity that is seized from the possession of

the petitioner is a commercial quantity.

LK, J

4. Learned Assistant Public Prosecutor submits that contraband of

266 kgs. is seized, which is a commercial quantity, and prima facie, the

prosecution has material to show that petitioner is the owner of the

vehicle. Further, the petitioner could not satisfy the twin conditions

under Section 37 of the NDPS Act. The investigation is pending with

regard to huge contraband and so far thirteen witnesses were examined.

He submits that A.2 to A.4 are absconding. If the petitioner is enlarged

on bail, it will be difficult for the prosecution to complete the

investigation. Hence, the petitioner is not entitled for bail, at this stage.

5. On perusal of the remand report, it appears that the petitioner is

working as PGT-Social Teacher, and A.2 is son-in-law of A.1. A.1 and

A.2 to earn money easily, decided to transport the ganja and both of them

acquainted with A.3 and A.4, who were also struggling with financial

problems. Then, A.1 to A.4 decided to transport Ganja and earn more

money, for which, A.1 decided to use his car bearing No.TS 29 B 9698

for transportation of ganja and later A.1 and A.2 given the car to A.3 and

A.4 and instructed them to bring Ganja from Malkangiri of Odissa State.

Accordingly, A.3 and A.4 went to Malkangiri and brought 266 kgs. of

ganja from unknown persons and transporting the same to Suryapet

through their car. But, when the officials were doing vehicle checking at LK, J

Forest Check-Post, Bhadrachalam, the inmates of the car escaped from

there. Admittedly, in this case, car belongs to the petitioner and

investigation is at nascent stage and as huge contraband of 266 kgs. is

seized from the car. Unless investigation is completed and true facts are

elicited, this Court cannot appreciate the contention raised by the learned

counsel for the petitioner. As far as judgment of the Apex Court in

Tofan Sing v. State of Tamil Nadu1 is concerned, there is prima facie

material to connect the accused and it is only after filing of the charge

sheet, the Court will be in a position to appreciate the contention of the

learned counsel for the petitioner. In that view of the matter and as the

investigation is pending and prosecution could prima facie connect the

petitioner to the alleged crime, this Court is not inclined to grant bail to

the petitioner.

6. Accordingly, this Criminal Petition is dismissed.

__________________________ LALITHA KANNEGANTI, J Date: 09.03.2022

mar

(2021) SCC online SC 882