Itre High Court · 2025

Order

i i I I l I TIIE IION''BI-E SR.I JI'STICE J. SR.EENfVASII'AO CRIMIN.IIL PETITION No.3265 of 2025 ORI'ER: This C::rin- r nal Petition is frled under Sections 4BO and 483 of the Eiharatiya Nagarik Suraksha Salhita, 2O23

(for short, 'ElNSriSl') by the petitioner/accr.rsed No. I se,::king bail in S.C.l,lo. I of 2024 on the frle of the Metrc politan Sessions .Jr-LclFie , City Criminal Courts, Hyderaba d at Nampaly (Cr:irr:r' No.NCB F.No.4a/ I / I /2022 /l\l(llllISUB- ZonefHyderzr.br:<L), registered for the offences punis,rable rrnder Secti,rns 3(c) read with Section 2l(c),28 and 29 of the Narcotic Dn, gs and Psychotropic Substances; ,A,,:t, 1985 (hereinafter refi::r-r'ed to as, 'NDPS Act).

2. Heerd Mr. Vikas Goutharn, learned cotrnsel, representinl4 M s.Geetha Madhuri, learned cottnsel for the petitioner :tnrl Mr.Venkat Kalyan, learned cottnsel, representin5l S:: Gadi Praveen Kurnar, Depr.rt5, S;ol icitor Geneal of In<lia. appearing for respondent-State.

3. The: r ,iLse of prosecution in brief is tha t on

19.Ol.2022, tl:t Narcotics Control Brlream, Fftderabad Sub Zone ()ffi,:e rs, on information that a parc,:l rerering 2 tracking ID No.IZOSS gA5iO464tg3S29, which was booked from Dubai through UpS Courier service, destined to Vijayawada, Andhra pradesh and presently lying at UpS Courier Service, Hyderabad, proceeded to the UpS Express Private Limited, Begumpet, Hyderabad and seized a parcel having address of Consignor i.e., From Mohamed EI Amin Djekrif, Dubai and consignee address i.s., shop to Sri Rama Chandra Murthy, Vijayawada, Andhra pradesh and on oPening the said parcel, the officers found the suspected powder of 690 grarns, which is a narcotic drug of Heroin. Thereafter, the Ndrcotics Control Bureau (for short .NCBJ officers along with independent witnesses reached Vijayawada on 21.C 1.2()22 and,took the parcel for delivery to the address i.e. 23_15_50, cS Raju Road, SN Puram, Vijayawada, Andhra pradesh, which is the house address of the accused, where the independent witnesses delivered the said parcel to A 1 , who collected the said parcel.. Thereafter, the NCB officers enquired about the said parcel with A1, Al informed that the said parcel is to be delivered in Delhi to one person as per the directions received rzde Whatsapp call of mobile number +22 73 2g2 2554 belongs to his friend from South Africa. Hence, the l l I I 3 I accused cornmil-ted arr offence punishable under fle'::tions 8(c) read wil.h Sections 21(c), 28 and 29 of the NDPS Act' Le'iu-tr t'tl counsel for the petitioner subrnitte:l that

4. the petitiorLer i s innocent person and he did n'ot c< 'rnrnit any offenc<:, as alleged against hirn, and he rv;ls; l.alsely implicated zrs a:cttsed No.1 in this crime basing upt:'n the confessionzrl s':rrtement given by accused No.2 only, even without re<;or ,l ing the staternent of the pel-if ion'3r as required unclt:r Section 67 of the Act. The con{es'sional staternent iti ir irdrnissible piece of evidence.

5. He: f rrrther sr:.brnitted that no contratrarrrrl was recovered fron-r l-he petitioner and his statement rvas also not recorderl 1r.1 t.he NCB offrcers till filing of the complaint before the t.rirrl Court and there is no transcripl- b€ tween the peLiticlrer ar-rd co-accused and also thert: is no whatsapp <:hirt between the petitioner and co-trcr;used. Ttre petitior:.er \',ras a-rrested ot 22.O1.2022 in amctt.he r case and he was prcduced in this case before the trial ()o'rrt on execution ,:f I:' l'. warrant. He is now lodged in Crentral Jail, Tihar, Dr:lhi. However, ttre passport of l-he petLtioner was alread y :l :posited with the police and there is no 4 ctrance for the petitioner to flee away from the trial of the case. This Court granted bail to the other accused urde order dated 25.04.2022 in Criminat petition No.266l of 2022. Hence the petitioner is also entitled for grant of bail.

6. In support of his contention, he relied upon the following orders passed by the High Court of Delhi at New Delhi; i| Phundreimayum yas Khan v. State IGNCT of Delhif (Bail Application No.t383 of 2022, &ted. rt.ot.2o23l; iil Kingsley Ofobike vs. Narcotics Control Bureau (Bail Application No.246g of 2022, dated

12.O7.2D2g|l.

7. Per contro, learrred counsel appearing on behalf of respondent opposed the submissions made by the learned counsel for the petitioner contending that the petitioner has committed grave offence, which is punishable under the NDPS Act and the contraband seized in this case is a commercial quantity and that the petitioner also involved in similar offences and he is accused in three cases. Therefore, ttre petitioner is not entitled for grant of bail. B Having considered the riva_l subrnissions rnade \ \ \ \ { i l i I 5 by the respcctiva parties and after perusal of the rna terial available on rer;,rrd, it reveals that on 19.Ol.202'2 the NCB Officers basing rpon the inlormation that a parcel bearing tracking ID N<r. 20559A50464193529, which w,as b(,oked frorn Dubai l-h 'or.rgh UPS Courier service, dest nr:d to Vijayawada. Arrlhra Pradesh. The record furth er re'vea.ls that the resrl:orr,lent Frled cornplainl against the 1>etil.ioner and other (rcc'.r sed, wherein it is specifically steLted that 69O grams ()f 'croin was seized, which is a c,rrrtm,:rcial quantity. [n ' he above cornplaint, there are sp ecifrc allegaLions lev,:lled against the petitioner tlra:. he committed ihc ;aid offence. At this stage, it is pertinr:nt to note Section ll7 c I thc NDPS Act, which reads as under: "37 ,fffcn;es to be cognizable and non-bailable. - (1) Not$ iths ta'lding anything contained in the Code cf Criminal I rocedure, 1973 {2 of l97al,-lal every offence punishablt under this Act shall be cogrrizable; (b) rrc lre.son accused of an offence punishable for 1[offi:oces under section 19 or section 24 or section 27,,\ and also [r r offences involving commercial quantity] sh:a t be releas::r on bail or on his own bond unless-- (i) lhe t\r r i. Prosecutor has been given an opportunily t ' oppose tirc application for such release, and (ii) uterc he Public Prosecutor opposes the applicatior, the r:r>rrr'- s satished that there are reasonable grourds for believir g that he is not guilty of such offence an(l tllat he is .rot i ich' to commit any offence while on bail- (21 Tre llrr it.ations on granting of bail specihed in clarrs,: 6

9. (b) of sub-section (1) are in addition to the limitations under the Code of Criminal procedure, 1973 (2 of 19741 or any other law for the time being in force on granting of bail." In view thereof, Section 37 of the NDpS Act mandates that offences involving commercial quantities be non_bailable, requiring reasonable grounds to believe the accused is not guilty and unlikely to commit further offences while on bail. The orders relied upon by the learned counsel for the petitioner, are not applicable to the facts and circumstances of the case and the petitioner is involved in similar nature of offences.

10. In respect of the other submission rnade by the learned counsel for the petitioner that this Court granted bail to accused No.2, and therefore, the petitioner is also entitled for bail, is concerned, this Court mainly taking into consideration of his age along with other grounds, granted bail to accused No.2 and basing upon the sarne, the petitioner is not entifled to seek for grant of bail.

11. It is pertinent to rnention that the Hon,ble Suprerne Court in The State of Meghalaya Lalrintlunga Sailo and anotherr, held ttrat: v "6. While considering the cases under NDpS Act, one cannot be oblivious of the objects and ' 2024 INSC 537 7 reasonsr Iir r bringing the said enactrnenl. a ft( :r repealing the then existing laws relating to tt,e Narcoti,: rlr ugs. The object and reasons givr:rr in the act its,,-lf reads thus: - "An ar: to consolidate and amend the lavr rr:,lirting to narcotic drugs, to rnake stringt: -rt. provisions for the control and reglrla.t,on of operations relating to na;^cot:i: drugs and psychotropic substr,Lrrces, to provide for the forfeiture of 1>r<,1,erty derived frorn, or used in, illioit 1raffic in narcotic drugs and ps5'3[,1y' ropic substances, to implernettt the pr ovisions of the Internationa l Corvention on Narcotic Drrgs and Psy:[6v' 16p1c Substances and f<rr matters connected therewith. " In th e decision in Collector of Custornsi, New Delh:i v. Ahrnadalieva Nodira2, the threr: judge ber:r,;h of this Court considerecl thr: provisions under Section 37(1)(b) as als,:> 37(1)(b)(ii) of the NDPS Act, with regard to thr: express,i on "reasonable grounds" used the rr:in . This Court, held that it means sornething rn,rrr: than thc prirna facie grounds and that it conterntrrla l.t:s substantial and probable car:ses for- believing i l- at the accused is not guilty of t-hr: alleged r>ff,::rrce. Furthermore, it was held l_h:rl r_hr: reasonei.bl< Lrelief conternplated in the pro,risror L , [2004) 3 SCC 549 I would require existence of such facts and circumstances as are suflicient in themselves to jr.rstifu satisfaction that the accused is not guilt5r of the alleged offence. As relates the twin conditions under Section 37(1xbxiil of the NDpS Act, viz., tbat, firstly, there are reasonable grounds for believing that the accused is not guilt5r of such offence and, secondly, he is not likely to cornrnit any offence while on bail it was held therein that they are curnulative and not alternative. Satisfaction of existence of those tw.in conditions had to be based on the .reasonable grounds', as referred above.

7. In the decision in State of Kerala and Ors. v. Rajesh and Ors.3, after reiterating the broad pararneters laid down by this Court to be followed while considering an application for bail moved by an accused involved in offences under the NDPS Act, in paragraph lg thereof this Court held that the scheme of Section 37 of the NDpS Act would reveal that the exercise of power to grant bail in such cases is not only subject to the lirnitations contained under Section 439 of the Code of Crimina_l procedure, but also subject to the lirnitation placed by Section 3Z(1)(bxii), NDPS Act. Further it was held that in case one of the 3 [2O2O)12 SCC t22 9 two condil .ons there under is not satisfie<i the ban for 5ga nting bail would operate.' LZ. In l.he above said case, the accused is insolv,::d in offences und<:r l.le ctiort 2l(cl/29 of NDpS Act, more [han one occasion and lvl'rr,:r the quantity of the contraband substancl viz., heroin is 1.04(l kgs, much above the commercial quantity. then the non-consideratior rf the provisions under Section 37 of' NI)pS Act has to be takerL ai; r very serious lapse. Further the accus;el i.r the said case was a H.I/ patient. However, the Hon,ble Suprerre Oourt has not consict,:re ri the bail application; in view of the rigour r_here under.

13. Taktrlg tr to consideration the facts and circun:Lsta nc.es of the case, ttris Oou-t is not inclined to grant bail to the pct_itic,nrrr. 1+. Accord ingly, the Criminal petition is disrrisse,l I I As a se<1uaJ ttrereto, rniscellaneous applicati6,r s, il- any, pending in r_iris petition stald closed. //TRUE COPY// SD/- MOI{D. ISMAIL PTJTY REGISTRAR SECTION OFFICER To,

1. The tvletropol lan rSession Judge, City Criminal Courts Hyderabad at Nampally.

2. One CC to Ms;. Cieetha Madhuri N S, Advocate [OPUC] 3. One CC to Sri Gacli Praveen Kumar, Dy. Solicitor General c,f lndie [OUT] 4. Two CD Copi:s -&-- HIGH COUR-[' DATED:2410312025 ( t () ', :'l cr, 2ll l'1\\ i , D :.;:1 I -.i * :() ORDER CRLP.No.326!i ot 2025 DISMISSET} THE CRIMINAL PETITION @