Andhra Pradesh High Court - Amravati
Munnur Anil Kumar vs State Of Andhra Pradesh on 2 March, 2023
THE HON'BLE MS JUSTICE B.S.BHANUMATHI
Criminal Petition No.10364 of 2022
ORDER:
This Criminal Petition is filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C') seeking bail to petitioners/A3 and A4 in Crime No.103 of 2022 of Rampachodavaram Police Station registered on 15.09.2022 for the offences punishable under Section 8(c) r/w 20(b)(ii)(C) NDPS Act.
2. Heard Sri M. Deva Sudheer, learned counsel representing Sri Duggirala Subash, learned counsel for the petitioners/A3 and A4 and the learned Assistant Public Prosecutor representing the respondent/State.
3. The case of the prosecution is that on 15.09.2022, A3 and A4, while carrying 350 kgs of ganja in 18 bags in Innova car bearing No. AP 12 J 0007 belonging to A2, with the assistance of A5 and A6 piloting the car on Pulsar motorcycle bearing No. AP 39 KS 7147, were caught red handed.
4. Learned counsel for the petitioners submitted that the procedure contemplated under Section 50 of NDPS Act has not been followed and the detention of the petitioners in custody is illegal and violating Article 22 of the Constitution of India. He further added that the 2 BSB, J Crl.P.No.10364 of 2022 learned Magistrate has improperly remanded the petitioners to judicial custody without looking into the lapses of the Investigating Officer and that the learned Magistrate failed to observe that the procedure while arresting the accused in public place has not been strictly followed by the Investigating Officer and that no independent witness from the locality of the seizure have been taken while seizing the contraband and thus there is a grave violation of the procedure. Thus, the procedure is in violation of the decision of the Supreme Court of India in the case of D.K.Basu Vs. State of West Bengal1 wherein 11 parameters to be considered were listed. He further added that merely basing on the alleged confession, the accused were implicated.
5. Learned Assistant Public Prosecutor submitted that the petitioners were caught red handed and all the procedures have been adopted. He further stated that the investigation is pending.
6. Since the petitioners were caught red handed and according to the Investigating Officer, since it is on prior information he proceeded along with the mediators, the correctness of the same and the effect of not procuring independent witnesses from the locality can be looked into at the time of the trail. For the present case, seizure is not without the presence of the witnesses. Thus, the prima facie case is made out. As per Section 37 of NDPS Act, the person accused of offence involving 1 (1997) 1 SCC 416 3 BSB, J Crl.P.No.10364 of 2022 commercial quantity is not entitled to bail when the application for bail is opposed by the Public Prosecutor, unless the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. In view of the evidence currently available on record, this Court is not satisfied that the petitioners were not guilty of the offences alleged against them. Since 180 days have not elapsed from the date of their remand to judicial custody and as per Section 36A(4) of NDPS Act, 180 days apply in relation to Section 167 (2) of CrPC, there are no merits in the criminal petition.
7. In the result, the Criminal Petition is dismissed. No costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________ B.S.BHANUMATHI, J Date:02-03-2023 GSP 4 BSB, J Crl.P.No.10364 of 2022 18 THE HON'BLE Ms. JUSTICE B S BHANUMATHI CRL. P.No. 10364 of 2022 02.03.2023 GSP