Andhra Pradesh High Court - Amravati
Pithani Ravi Pitani Ravi Kumar vs The State Of Andhra Pradesh, on 19 April, 2024
1
APHC010615592023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
FRIDAY, THE NINETEENTH DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO: 9512/2023
Between:
Pithani Ravi @ Pitani Ravi Kumar ...PETITIONER/ACCUSED
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT
CRIMINAL PETITION NO: 410/2024 Between:
Bimal Kandewala @ Bimal Kumar Khandelwal ...PETITIONER/ACCUSED AND The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioners/accused:
1. KAKUMANU JOJI AMRUTHA RAJU Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR (AP) The Court made the following COMMON ORDER:
1. These two Criminal Petitions, under Section 438 of Cr.P.C., have been filed by the Petitioners/A6 & A4 respectively, seeking anticipatory bail in Cr.No.102/2023 of II Town Police Station, Visakhapatnam City. 2
2. The above crime was registered against the petitioners/A6 and A4 herein and others for the offence punishable under Sections 8(c) read with 20(b)(ii)(c) of NDPS Act, 1985.
3. The Prosecution's case, in brief, is that on 14.05.2023, the Inspector of II Town Police Station received credible information about the transportation of Ganja. He secured the presence of mediators and rushed to dilapidated railway quarters situated at Allipuram along with staff and mediators and found three persons standing in front of the railway quarters carrying luggage bags, upon seeing the Police, they tried to abscond. Then, the C.I., with the assistance of his staff, apprehended them. During the interrogation, A1 to A3 disclosed their address particulars, and they confessed to the involvement of A5 to A8. Based on their confessional statements, the Police seized 21 kgs of Ganja and 2100 ampoules of Pentazocine Lactate Injections from their possession in the presence of mediators under the cover of mediators report.
On the strength of the mediator's report dated 14.05.2023, the case in Cr. No.102/2023 of II Town Police Station, Visakhapatnam City, was registered against the Petitioners/A6 and A4 and others. The Petitioners/A6 and A4 and other accused were found absconding during the investigation.
4. Learned counsel for the Petitioners submits that Petitioners are innocent and they have been falsely implicated in this case; no specific overt acts are attributed against the Petitioners; based on the confessional statement of co-accused, the Petitioners are arrayed as accused. Except the said confessional statement, no other material has been collected to connect 3 the Petitioners in the commission of the offence; Petitioners are ready to cooperate with the investigation and they are ready to furnish sufficient sureties.
5. Learned Assistant Public Prosecutor filed a counter affidavit and submitted that the Police arrested accused A1 to A3, and they have confessed that Petitioners /A6 & A4 have close acquaintance with A1; A6 & A4 supplied 2100 sedative pentazocine injections I.P. (Ampouls) to A1; the accused frequently contacts over phone which was established in CDR of A1 and A4; to prevent the petitioners/A4 & A6 from committing any further offence as the petitioners/A4 & A6 supplying sedative drugs pentazocine injections to the local youth along with other accused and also selling Ganja to the local youth of Visakhapatnam City. The learned assistant public prosecutor further submitted that the investigation is at a crucial stage and that a charge sheet has not yet been filed. The petitioners/A4 & A6 have no previous antecedents. Hence, he prayed to dismiss the anticipatory bail applications.
6. I have heard both sides. Learned counsel on both sides reiterated their submissions on par with the contentions presented in the petition as well as in the counter-affidavit.
7. It is trite law that the power to grant a pre-arrest bail under Section 438 of the Cr.P.C., is extraordinary in nature and is to be exercised sparingly. Thus, pre-arrest bail cannot be granted in a routine manner. The Hon'ble Apex Court, adverting to its previous precedents, has discussed the parameters to 4 be considered while considering pre-arrest bail applications, in the case of State of A.P. v. Bimal Krishna Kundu1, has held as under:
"8. A three-Judge Bench of this Court has stated in Pokar Ram v. State of Rajasthan [(1985) 2 SCC 597 : 1985 SCC (Cri) 297 : AIR 1985 SC 969] :
(SCC p. 600, para 5) "5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal." 9. Similar observations have been made by us in a recent judgment in State v. Anil Sharma [(1997) 7 SCC 187 : 1997 SCC (Cri) 1039 : JT (1997) 7 SC 651] : (SCC pp. 189-90, para 8) "The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest."
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12. We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in favour of granting anticipatory bail to the respondents. It is disquieting that implications of arming the respondents, when they are pitted against this sort of allegations involving well-
orchestrated conspiracy, with a pre-arrest bail order, though subject to some conditions, have not been taken into account by the learned Single Judge. We have absolutely no doubt that if the respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Public interest also would suffer as a consequence. Having apprised himself of the nature and seriousness of the criminal conspiracy and the adverse impact of it on "the career of millions of students", learned Single Judge should not have persuaded himself to exercise the discretion which Parliament had very thoughtfully conferred on the Sessions Judges and the High Courts through Section 438 of the Code, by favouring the respondents with such a pre-arrest bail order."
8. The learned counsel for the Petitioners/A.6 and A.14submits that the initiation of the proceedings against the Petitioners were premature and the Petitioners have been falsely roped in the present case merely on the basis 1 (1997) 8 SCC 104 5 of the confessional statement of the co-accused; there is no incriminating evidence against the Petitioners; the Petitioners did not meddle with the investigation; the Petitioners have no link with the said co-accused persons and the Investigation authorities have not collected any independent material showing the Petitioners' involvement in the commission of the offence.
9. Learned Assistant Public Prosecutor contends that the investigation could not be completed, as the Petitioners have absconded and contraband involved in this crime is a commercial quantity; the contention that confessional statement is a weak piece of evidence cannot be taken at this stage, and in the event, the Petitioners are granted pre-arrest bail, they may not cooperate with the investigation and may threaten the witnesses.
10. Learned Assistant Public Prosecutor further contends that during the investigation, the Investigating Officer obtained CDRS of A.1 (cell No.73862 61856) and A.5 (cell No.99897 66801), and the CDRs reveal that A.5 made 52 Petitioner/A.6 (Cell No.9494666654) and A.1 made 99 calls to Petitioner/A.4 (Cell No.7001273872). A copy of the CDRs is placed along with the counter to support the contention.
11. Learned counsel for the Petitioners contends that as per section 5(2) of the Indian Telegraph Act, 1885, it is obligatory and mandatory on the part of the competent authority to record the reasons in the order of interruption. In support of his contention, he relied on the decision in People's Union for Civil 6 Liberties (PUCL) vs. Union of India and another's case (A.I.R. 1997 Supreme Court 568), it is held at para Nos.28 to 30 as under:-
"28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. "Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
29. The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency of the existence of a public safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order, or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.
30. The above analysis of Section 5(2) of the Act shows that so far the power to intercept messages/conversations is concerned the Section clearly lays down the situations/conditions under which it can be exercised. But the substantive law as laid down in Section 5(2) of the Act 7 must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (AIR 1978 SC 597), that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself". Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes".
12. Learned Assistant Public Prosecutor contends that the principle laid down in the said decision cannot be made applicable to the facts of the case, as it is nobody's case that the Prosecution has collected the incriminating material by interception of messages. It is the Prosecution's case that after commission of the offence, it collected CDRs, for which, the investigation authority is authorized. He further contends that section 5(2) of the Indian Telegraph Act does not contemplate permission to collect CDRs.
13. The learned counsel for the Petitioners has placed reliance on the common order of Vikrant Singh Vs. State of Punjab 2 , the High Court of Punjab and Haryana at Chandigarh held that:
................................. without the transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused. ..............................
14. In the present case, the alleged recovery of 21 K.G.s of Ganja and 2100 ampoules of pentazocine lactate injections seized from the possession of the co-accused is a commercial quantity. As per the learned Public Prosecutor's contention, the Petitioners/A.6 and A.4 have a close acquaintance with A.1, 2 CRM-M-39657 OF 2020 (O & M) = 2022:PHHC:039256 8 and they, along with A.5 collectively procured 2100 sedative pentazocine injunctions I.P., (ampouls) from A.1. Learned Assistant Public Prosecutor requested to prevent the Petitioners/A.6 and A.4 from committing any further offence by transporting of Ganja to others; the Petitioners' request may not be considered, as they have no fixed abode and they cannot be produced whenever the Court requires their presence. As seen from the record, there are specific allegations against the Petitioners that they, along with co-accused persons, were indulging in transporting and selling Ganja.
15. It is noted that the co-accused have been arrested and they have made specific allegations against the Petitioners in their confessional statements. It is relevant to note that the statements of the co-accused are to be tested at the time of trial. No reason has also been pleaded as to why the co-accused would try to falsely implicate the Petitioners.
16. It is erroneous to say that confessional statement made by the accused during interrogation cannot be considered or looked into to connect the other co-accused. Such disclosure statement of co-accused can certainly be taken into consideration for providing lead in investigation and even during trial it is admissible under Section 30 of the Indian Evidence Act.
17. Section 30 of the Indian Evidence Act provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. 9
18. Furthermore, the recovery involved in this case amounts to commercial quantity and from the facts and circumstances of the case offence under Section 20(b)(ii)(c)of NDPS Act is disclosed attracting bar of Section 37 of NDPS Act.
19. The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:
Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 3 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.10
20. No doubt, no contraband was recovered from the Petitioners' possession, but as per the learned Assistant Public Prosecutor's contention, the Petitioners are the prime Accused, who collectively procured 2100 sedative pentazocine injunctions I.P. (ampoules) from A.1. The investigation in this case, is not yet completed. The Petitioners/A.6 and A.4 still need to be apprehended. Still, the investigation agency has to collect the evidence relating to the Petitioners' involvement in the alleged offence. In case the Petitioners are released on bail, there is every possibility of interfering with the further investigation.
21. At this stage while dealing with a bail application, this Court cannot overlook the complicity of the Petitioners in terms of section 10 of the Evidence Act. In case of a conspiracy, conduct and/or communication between the conspirators as evident from call detail records are relevant under Section 10 of the Evidence Act to prove the factum of conspiracy. This Court views that call details report is one of the prima facie grounds on the Petitioners' involvement in the alleged offence. As observed earlier, the probative value of the evidence will be taken by the learned Trial Court at the stage of trial.
22. Learned counsel for the Petitioners placed reliance on the Judgment of Hon'ble Supreme Court in Narcotics Control Bureau v. Pallulabid Ahmad Arimutta3, wherein, it held that:
11. Having gone through the records along with the tabulated statement of the respondents submitted on behalf of the petitioner NCB and on carefully perusing the impugned orders [Pallulabid Ahamad Arimutta v.3
(2022) 12 SCC 633 11 State4] , [Mohd. Afzal v. Union of India5], [Munees Kavil Paramabath v. State 6 ], [Abu Thahir v. State 7 ], [Mohd. Afzal v. Union of India 8 ], [Munees Kavil Parambath v. State of Karnataka9] passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material 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. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569 of 2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.
12. It has been held in clear terms in Tofan Singh v. State of Tamal Nadu, (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDSP Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th January, 2020, 19th December, 2019 and 20th January, 2020 pased in SLP (Crl.) No@ Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No.2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.
23. It is to be kept in mind that the investigation is currently at a nascent stage. The considerations governing the grant of anticipatory bail are materially different than those to be considered while adjudicating application for grant of regular bail, as in the case referred to above, the accused is 4 2019 SCC OnLine Kar 3516 5 2020 SCC OnLine Kar 3433 6 2020 SCC OnLine Kar 3431 7 2019 SCC OnLine Kar 3517 8 2020 SCC OnLine Kar 1294 9 2020 SCC OnLine Kar 3432 12 already under arrest and substantial investigation has been carried out by the investigating agency.
24. The material placed on record shows that the Petitioners were in regular touch with co-accused. Section 65-B of the Evidence Act deals with admissibility of the electronic records. Production of certificate under section 65-B(4) of the Evidence Act may be necessary safeguard to ensure authenticity of the record. But that may be done at any stage of trial at the instance of the trial Court either by directing the production of certificate under section 65-B(4) of the Evidence Act or even by summoning the person having possession of laptop/tab/mobile, where the electronic record is stored, to the witness box. This Court is not called upon to evaluate evidence at the stage of consideration of grant of bail.
25. The Hon'ble Apex Court, in the case of Tofan Singh v. State of Tamil Nadu10, held that a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence. However, it is relevant to observe that the Court is considering applications under Section 438 of the Cr.P.C for pre-arrest bail. The applicants will be entitled to the benefit of the said judgment, in the opinion of this Court, after the investigation is completed and the charge sheet is filed.
26. The Apex Court in the case of State of Haryana v. Samarth Kumar11, has held as under:
10
(2021) 4 SCC 1 11 2022 SCC OnLine SC 2087 13 "4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was effected from the respondents and that they had been implicated only on the basis of the disclosure statement of the main accused Dinesh Kumar. Therefore, reliance was placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1.
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8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial.
9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents."
27. In an Appeal filed against the granting of anticipatory bail for the offences punishable under Sections 8(c), 20(b)(ii)(c) and 29(1) of the NDPS Act, the Hon'ble Supreme Court held in State by the Inspector of Police v. B. Ramu12 that:
11. In case of recovery of such a huge quantity of narcotic substance, the Courts should be slow in granting even regular bail to the accused what to talk of anticipatory bail more so when the accused is alleged to be having criminal antecedents.
12. For entertaining a prayer for bail in a case involving recovery of commercial quantity of narcotic drug or psychotropic substance, the Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act.
28. It is settled law that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Cr.P.C. The Hon'ble Apex, in the case of State 12 CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Crl. ) No(s). 8137 of 2022) 14 V. Anil Sharma 13 , has also underlined the importance of custodial interrogation as under:
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.
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8. The above observations are more germane while considering an application for post-arrest bail. The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate the learned Single Judge ought not to have side-stepped the apprehension expressed by the CBI (that the respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during which he held such office."
29. Considering the grave nature of offence and the allegations levelled against the Petitioners, this Court views that the custodial interrogation of the Petitioners/A.6 and A.4 are required in this case for proper and just investigation of this case. The material placed on record also shows that the Petitioners were in conversation/contact with the arrested co-accused through 13 (1997) 7 SCC 187 15 the mobile phone which shows the nexus between the Petitioners and the other co-accused and the conspiracy between them. The offence alleged to be committed by the Petitioners/Accused is against the society and thus considering all the attending facts and circumstances of the case as well as gravity of the offence, as also the settled principle of law that power of grant of bail under Section 438 Cr.P.C., is to be sparingly exercised in extra ordinary circumstances. Thus, the implication of the Petitioners prima facie cannot be said to be without justification. That being so, this Court is unable to return a finding that there are reasonable grounds to believe that the Petitioners are not guilty of charged offences. There is no reason available to this Court to record satisfaction that there are reasonable grounds for believing that the Petitioners are not guilty of such offence and that they are not likely to commit any offence while on bail. Thus, there being no such circumstances having been made out in this case, this Court does not find it a proper case for granting the relief of anticipatory bail to the Petitioners/A.6&A.4. Therefore, without commenting on the merits of the case, lest it may prejudice the case of either of the parties, the anticipatory bail application of Petitioners/A.6& A.4 is liable to be dismissed.
30. In the result, the Criminal Petition is dismissed.
Miscellaneous pending applications, if any, shall stand closed.
________________________ T. MALLIKARJUNA RAO, J Date: 19.04.2024.
SAK 16 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO CRIMINAL PETITION Nos. 9512 of 2023 & 410 of 2024 Date: 19.04.2024 SAK