Joga Lohith Yadav v. The State of Andhra Pradesh

Counsel for the Respondent/complainant: Public Prosecutor The Court made the following: ORDER: The Criminal Petition has been filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’), seeking to enlarge the Petitioner/Accused No.3 on bail in Cr.No.319 of 2025 of Machavaram Police Station, Vijayawada City, registered against Petitioner/Accused No.3 herein for the offence punishable under Sections 8(c) 2 read with 22(c) of the Narcotic Drugs and Psychotropic Substances Act,

Sri G.V.S Kishor Kumar, learned Counsel for the Petitioner submits that the Petitioner is innocent and has been falsely implicated in the alleged offence, without any cogent evidence linking to the commission of the crime. The petitioner is a B.Tech graduate, at the impressionable age of 21 years. He has been victimized in this case. He was arrested on 01.09.2025 and has been in judicial custody for the past 46 days. The Petitioner undertakes to abide by any condition that this Court may impose while granting bail to the Petitioner.

It is further submitted that the Petitioner has a permanent place of residence and there is no likelihood of him absconding or evading the process of law. The Petitioner has cooperated with the investigation thus far and assures continued cooperation in future proceedings. It is also urged that the allegations are of a nature that do not warrant custodial interrogation, and if any condition is imposed while granting the bail, Petitioner would not violate it; and it is urged to allow the petition.

Per contra, Ms. Ms.P.Akhila Naidu, learned Assistant Public Prosecutor strenuously opposed the grant of bail, contending that the investigation is still underway and several material witnesses are to be examined. It is submitted that enlargement of the Petitioner on bail at this stage would seriously hamper the progress of the investigation and may result in non-cooperation from the 1 The NDPS Act 3 Petitioner. The prosecution further apprehends that the Petitioner, if released, may influence or intimidate witnesses, thereby obstructing the course of justice. It is also urged that there exists a real and imminent risk of the Petitioner absconding and evading the due process of law. Given the gravity of the allegations and the potential threat to the integrity of the investigation. The learned Assistant Public Prosecutor further submits that the petitioner is the ultimate receiver and consumer of the commercial quantity of the contraband. There are bank transactions and CDRs indicating communication between the petitioner and accused Nos. 1 and 2, from whom the contraband was seized. The petitioner, in advance, parted with an amount of Rs. 13,000/- to accused No. 1 and assured payment of the remaining amount. The investigation is still in its nascent stage, and only five witnesses have been examined so far. It is submitted that the Petitioner does not deserve the discretionary relief of bail and it is urged to dismiss the bail petition.

Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the petitioner and the learned Assistant Public Prosecutor. I have perused the record.

In the light of the case of the prosecution and the contentions of the learned Counsel for both the sides, now the point for consideration is: “Whether the Petitioner is entitled for grant of bail?”

Sri G.V.S Kishor Kumar, the learned counsel for the petitioner relied on a decision of the Hon’ble Apex Court in Sahil Firoz Shaikh v. The State of 4 Maharashtra 2 wherein the appellant was 18 years old there was no antecedents and recovery from the appellant therein and granted pre-arrest bail to the appellant who is a female.

The facts and circumstances of the Sahil Firoz Shaik supra are entirely different to the facts and circumstances of the instant case, and it cannot be followed as the instant case is in regard to grant of regular bail, whereas, the Sahil Firoz Shaik case was filed for grant of anticipatory bail.

The learned counsel for the petitioner further relied on a decision of the High Court of Punjab and Haryana in Rakesh Kumar Singla v. Union of Inida3 wherein it is held by following the decision of the Hon’ble Apex Court in Tofan Singh v. State of Tamil Nadu4 quoting the answering of its reference, as under: (i) That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

in Rakesh Kumar Singla supra it is held that complexity of the accused will have to be determined by the quality of evidence led during the trial; as far as the self inculpatory statement relied upon, the decision of the Hon’ble Apex Court in Tofan Singh supra would come to the aid of petitioner therein to 2 Criminal Appeal No(s).4909 of 2024 3 CRM-M-No.23220 of 2020 (O&M) dated 14.01.2021 4 (2013) 16 SCC 31 5 allow him the benefit of the regular bail. It was further observed by quoting the judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal5 wherein it was held that a certificate Section 65B of the Indian Evidence Act, 19726 is required when reliance was being placed upon electronic record. Hence, the message would be of no evidentiary value as on date. While stating that so, it was observed that no useful purpose would be served in keeping the petitioner behind bars and enlarged the petitioner therein on bail.

The learned counsel for the petitioner also relied upon the decision of the High Court of Bombay in Aryan Shah Rukh Khan v. Union of India7 wherein bail was granted to the accused therein as the accused No.1 was not found in possession of any objectionable substance. Only Accused Nos.2 and 3 were found in illegal possession of drugs. It was further mentioned that the quantity of the drug seized from the possession of the Accused Nos.2 and 3, if independently considered only a small quantity. Whereas, in the instant case, the contraband seized from the possession of Accused Nos. 1 and 2 is undoubtedly a commercial quantity. The petitioner was arrested on

01.09.2025 and has been in judicial custody for the past 46 days. So far, only five witnesses have been examined. The investigation is at a progressive stage, and the inventory has been completed. It is reiterated that the seized contraband is commercial in quantity. 5 (2020) 7 SCC 1 6 The Evidence Act 7 Criminal Bail Application No.3624 of 2021 dated 28.10.2021 6 12 The investigation also reveals the existence of call data records between the petitioner and Accused Nos. 1 and 2, and that an amount of Rs. 13,000/- was paid in advance for getting delivered the contraband to the petitioner. Since the investigation is still in its nascent stage, the applicability of the judgment of the Hon’ble Apex Court in Tofan Singh cannot be considered at this stage. Questions regarding the relevance or admissibility of confessions under the provisions of ‘the Evidence Act.,’ are matters to be determined after filing of the charge sheet, and at a full-fledged trial. It remains uncertain what documents or material the investigating officer may collect in the course of investigation. 13 Since the investigation is ongoing, it cannot be expected that a certificate under Section 65B of ‘the Evidence Act.,’ would have already been made available, and the petitioner cannot be granted bail on this ground alone. The evidentiary value of any document at the investigation stage cannot be assessed by this Court in a petition filed for grant of bail.

It is alleged that the petitioner asked Accused No. 1 to procure the contraband and communicated via WhatsApp regarding the location of the drugs. The evidence in regard to this is required to be collected.

In this regard, it is opposite and relevant to refer the judgment of the Hon’ble Apex Court in State of Kerala v. Rajesh8at para Nos.18, 19, 20 and 21 held as under: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. 8(2020)12 SCC 122 7 Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind 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 a 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. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) „24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.‟ there are reasonable grounds for believing that the

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause.

The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something 8 more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

In the case on hand, the High Court seems to have completely over looked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.”

The learned Assistant Public Prosecutor vehemently opposed to grant of bail to the petitioner, as he was involved in dealing with commercial quantity of contraband. There are no similar adverse antecedents reported against the petitioner. This Court is not satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail.

In view of the law laid down by the Hon’ble Apex Court in State of Kerala v. Rajesh, the request of the Petitioner cannot be considered at this juncture. For the above reasons, the Criminal Petition is liable to be dismissed.