IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU.
CCH.33.
PRESENT:
SMT. B.S. JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS),
BENGALURU.
DATED: THIS THE 23 rd DAY OF SEPTEMBER 2022
Crl. Misc.No.8586/2022
petitioner :
(accused)
Kurre Trindha Reddy, 51 years,
S/o.Sri Sambi Reddy, No.1-433, Near
Library, Undavalli, Tadepalli, Guntur,
Andhra Pradesh.
(By Sri BJ., Adv.)
V/S.
Respondent :
State by Union of India,
by Intelligence Officer, directorate of
Revenue Intelligence, No.8(2)P,
opposite BDA complex, HBR layout,
Kalyanagar post, Banasawadi,
Bangalore.
(By Spl. Public Prosecutor)
O R DE R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in F.No.DRI/BZU/S-IV/ENQ-
2
39/(INT-NIL)/2022 of DRI., BZU., registered for the offences
punishable U/Sec.8(c) R/w.Sec.21(c), 23(c), 28 of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:The petitioner is innocent of the commission of offences
made against him. He has been falsely implanted in the case.
He hails from the respectable family.
A false and fictitious
story has been cooked up by the respondent and the petitioner
was made a scapegoat in connection to the above case.
Though the alleged offence is non bailable, but is neither
punishable with imprisonment for life or death sentence. The
petitioner on the instruction of one Sahil Mahango he has
received the baggage and he was instructed to hand over them
to one person at Delhi.
He is not aware of contents of the
baggage. There is no document indicating that the petitioner
is involved in transporting the drug. The voluntary statement
is recorded subsequent to the seizure. In the said statement
he has stated that one Edward Prince Anderson instructed to
collect the baggage from Sahil Mahango at Lilongwe and he
was asked to carry baggage to Delhi from Lilongwe through
Malawi. The petitioner did not enquire in regard to the nature
3
of drugs and its procurement.
CCH-33
Crl.Misc.8586/2022
At no point of time the
petitioner is in possession of the alleged contraband.
He is
educated, holding Masters Degree in Arts from Nagarajuna
University, Guntur.
He has worked as Teacher in private
schools till 2016. He has to take care of his family. If he is
detained in the Central prison his career will be spoiled in the
midst of the other criminals in the prison. The petitioner is the
permanent resident of the address shown in the cause title.
The petitioner is ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. He is ready
to offer surety for their due appearance before this court.
Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 14.52 Kgs., of heroin from
the conscious possession of the accused persons which is a
commercial quantity. There are sufficient material available
against the petitioner, and the said offences are punishable
with rigorous imprisonment for a term which shall not be less
than 10 years which may extend to 20 years and shall also be
liable to fine. The investigation is pending. In the event of his
4
release he may tamper with the prosecution witnesses.
In the
event of grant of bail he may abscond and may tamper the
investigation. The petitioner is not entitled for bail. With these
specific pleas sought to reject the bail plea of the petitioner.
4. Heard the arguments of both sides.
The learned
counsel for petitioner and respondent have submitted written
arguments along with case laws.
5. The points that arise for my consideration are as here
under:
1. Whether petitioner have made out
sufficient grounds to enlarge him on
bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order for the following:
5
CCH-33
Crl.Misc.8586/2022
REASONS
7. POINT NO.1:- The IO, DRI., Bangalore., is the
complainant in the case.
He has apprehended the accused
with commercial quantity of contraband.
According to the
report of complainant IO., he has received credible intelligence
to the effect that one person namely Kurre Trindha Reddy
bearing Passport No.L8762450 is scheduled to arrive in
Bengaluru from Lilongwe (Malawe) via Addis Ababa (Ethiopia)
in Ethiopian Airlines flight No.ET 690 on 19.8.2022 who would
be attempting to smuggle narcotic substance into India. The
officers of DRI BZU have arrived at KIA, Bengaluru around
7.00 hours on 19.8.2022. At around 7.40 hours on 19.8.22
the said Airways flight landed at Bangalore airport after
mandatory checkups and clearance of immigration at around
8.15 hours the said officers started checking passport of
incoming passengers in the said flight and after checking of
few passengers the accused was intercepted by the officers of
DRI BZU.
After confirming his identity enquired about his
purpose to visit dated 9.8.2022 to Lilongwe, Malawi to which
he has stated that he went there for some business purpose
6
related to chemicals. He was in possession of boarding pass
having sequence number 010 having seat No.16L with 02
check in baggage stickers. He was also carrying one green
colour hand baggage trolley having marking as VIP travel gear.
In the presence of mahazar witnesses they have checked the
luggage of present petitioner.
During initial checking no
incriminatory article is revealed. But on persistent enquiry he
has stated that some chemical items are concealed false
bottom of check in baggage. They have again placed the empty
it was reflected some concealment from the bottom of check in
bags.
Accused was told to remove the concealment.
In the
said concealment there was contraband packed in light
brownish paper weighing 14.52 Kgs. When it was tested with
DD kit it gave positive answer for heroin. It was a white colour
powder. The bulk contraband after taking out the sample was
seized under the detail mahazar. Summons was issued to the
accused. His statement came to be recorded. Thereafter, he
was put under arrest, produced before the court and
remanded to judicial custody.
The accused herein is
CCH-33
Crl.Misc.8586/2022
7
prosecuted
for
the
offences
punishable
U/Sec.8(c)
R/w.Sec.21(c), 23(c), 28 of N.D.P.S. Act.
8. It is vehemently argued by the learned counsel for the
petitioner that he is innocent of commission of offence. He is a
teacher by profession.
The son of the petitioner is a PhD.,
student doing part time job. As per the information of one of
lecturers the son of the petitioner who was offered part time
job, an Advocate of Malawe by name Edward deliberately
misguided the petitioner and his son stating that their
business is legal in all respects.
The petitioner and his son
have decided to travel to Malawe to do the said job.
Petitioner’s son received flight tickets through whatsapp from
Edward.
They were instructed to deliver the baggage
containing chemical powder which is used to clean stain on
currency notes.
They were given wrong information.
They
were made to travel from Vijayawada to Delhi and from Delhi
to Malawe.
At Malawe airport,
petitioner and his son were
made to meet their company manager Sahil Mahingo.
Sahil
Mahingo send only the petitioner from Malawe to Bangalore on
18th august. He was arrested. Later petitioner’s son was sent
8
to Delhi on 20th August. They are innocent of commission of
offences. They are technically trapped. The web site address
copy, Edward’s
contact details, screen shot from website,
whatsapp chart history and mail are available indicating the
innocence of the petitioner. The petitioner is sick. The medial
documents speaks about his illness. Hence, sought to enlarge
him on bail.
9. Learned counsel for petitioner referred to the dictum
of Hon’ble Apex Court reported in AIR 2015 SC 2098 in the
case of Mohan Lal Vs., State of Rajasthan and another dictum
of Jammu and Kashmir High Court in the case of Rayees
Ahmad Dar Vs., Union Territory Bail Application No.05/2022
dated 21.5.2022. In the said dictum of Hon’ble Apex Court
discussed that the animus and the mental intent which is the
primary and significant element to show and establish
possession. Further, personal knowledge as to the existence of
the ‘chattel’ i.e., the illegal substance at a particular location or
site, at a relevant time and the intention based upon the
knowledge, would constitute the unique relationship and
manifest possession. By referring to the dictum it is argued
9
CCH-33
Crl.Misc.8586/2022
that the petitioner herein is having no animus and he is not
aware of the contraband which is being seized by the officers of
DRI. He has been informed by one Edward advocate of Malawe
that he is going to provide part time job and has informed him
that a chemical to clean stains has to be carried and for
carrying the said chemical he has been paid some amount. In
the dictum the Hon’ble High Court of Jammu and Kashmir the
Hon’ble High Court made discussion about Sec.37 of the NDPS
Act is not a complete bar to the grant of bail in a case where
the recovery of contraband drug falls under the parameters of
commercial quantity. It only provides that bail in such cases
cannot be granted unless the prosecutor has been given an
opportunity to oppose the application and 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.
I have carefully gone through the rival contentions. As per the
report of prosecution the accused here in is carrying heroin to
the tune of 14.52 Kgs., Malawe to Bengaluru. It was concealed
in the baggage. On repeated enquiry, petitioner has revealed
10
about the transport of the contraband.
In his statement he
has stated that he has been to Malawe, one Shail Mahango
promised him the job. Shail Mahango met him, handed over
the trolley bags and as per the instructions he has carried the
baggages. He has offered 3000 US dollars for carrying it.
When
he
was
proceeded
Bangalore Airport.
to
Bengaluru,
intercepted
at
There during search, 14.52 Kgs., heroin
was seized. At this stage, this court has to appreciate
primafacie materials about the possession of huge quantum of
contraband in the luggage baggage of petitioner.
The
contention put forth by the petitioner herein is he is innocent
and he was doing the part time job at the instance of one Sahil
Mahingo.
He has been tendered 3000 dollars by the said
person. He contends that it is a chemical to clean the stains.
On apprehension and seizure and on testing it with DD Kit the
seized article is found to be commercial quantity of heroin. If
at all the petitioner is carrying a chemical which is permission
and declared as a harmless article then he would have shown
the documents for carrying the same from Malawe to India.
What made him to conceal the packet deep inside the carry
11
CCH-33
Crl.Misc.8586/2022
bag. If the chemical name is known to him and if that is an
authorized article to transport what made him to hide the
thing and to make false statement before DRI officers initially.
Why he has not questioned the person who has handed over
the baggage about the details of the articles which is to be
carried.
All these circumstances in the case infers that
petitioner herein is having knowledge of the article which is
going to be carried by hiding in a luggage bag. The very act of
carrying the article concealed inside the luggage bag without
informing the officers who are conducting checking, clearly
denotes the animus of the petitioner.
At this stage, the
prosecution has placed primafacie material before this court
that the petitioner herein is carrying prohibited contraband
heroin which is a commercial quantity in his baggage.
The
case law referred to by the petitioner would no way assist the
case of petitioner. As in the case of Mohan Lal Vs., State of
Rajasthan the word possession under the NDPS Act has been
elaborately discussed. On looking to the facts of this case the
petitioner herein is having knowledge of carrying a prohibited
12
article. Therefore, the case laws referred would not be of any
assistance to the petitioner herein.
10.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. At this stage, it is necessary for
me to refer to the judgment of Hon’ble Apex Court in Crl.
Appeal No.1043/2021 dated 22.9.2021 in the case Union
of India through NCB., Lucknow Vs., Mohammed Nawaz
Khan wherein the NCB., Lucknow has challenged the order of
grant of bail to the accused by the Hon’ble High Court of
Allahabad, Lucknow Bench. In the said case the Hon’ble Apex
Court pleased to make a detail discussion on the criteria to be
considered for grant of bail when the accused is prosecuted
under the provisions of NDPS Act. At para20 of the judgment
the Hon’ble Apex Court pleased to note that
“the High Court and this court are required to apply while
granting bail is whether there are reasonable grounds to
believe that the accused has not committed an offence and
whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
CCH-33
Crl.Misc.8586/2022
13
NDPS Act and in order to curb the menace of drugtrafficking
in the country, stringent parameters for the grant of bail
under the NDPS Act have been prescribed. In the present
case, the High Court while granting bail to the respondent
adverted to two circumstances, namely (i) absence of
recovery of the contraband from the possession of the
respondent and (ii) the wrong name in the endorsement of
translation of the statement under Section 67 of the NDPS
Act.
As regards to the finding of Hon’ble High Court
regarding absence of recovery of the contraband from the
possession of the respondent, we note that in Union of India
v. Rattan Mallik, a twojudge Bench of this Court cancelled
the bail of an accused and reversed the finding of the High
Court, which had held that as the contraband (heroin) was
recovered from a specially made cavity above the cabin of a
truck, no contraband was found in the ‘possession’ of the
accused. The Court observed that merely making a finding
on the possession of the contraband did not fulfill the
parameters
of
Section
37(1)(b)
and
there
was
non
application of mind by the High Court. In line with the
decision of this Court in Rattan Mallik (supra), we are of the
view that a finding of the absence of possession of the
contraband on the person of the respondent by the High
Court in the impugned order does not absolve it of the level
of scrutiny required under Section 37(1)(b)(ii) of the NDPS
Act.”
14
11. Further in regard to non compliance of the procedure
laid U/s.42 of NDPS Act, it is held by the Hon’ble Apex Court
that it is a question of fact. Further, at Para30 the Hon’ble
Apex Court pleased to make the following essential elements
ought to have been considered by the Hon’ble High Court of
Lucknow.
(i) The respondent was traveling in the vehicle all the
way from Dimapur in Nagaland to Rampur in Uttar
Pradesh with the coaccused;
(ii) The complaint notes that the CDR analysis of the
mobile number used by the respondent indicates
that the respondent was in regular touch with the
other accused persons who were known to him;
(iii) The quantity of contraband found in the vehicle is of
a commercial quantity; and
(iv) The contraband was concealed in the vehicle in
which the respondent was traveling with the co
accused.
By making a detail observation in granting the bail to the
accused is incorrect and has set aside the impugned order.
The aforesaid recent judgment of Hon’ble Apex Court clearly
highlights on the aspect that what are all the circumstances to
CCH-33
Crl.Misc.8586/2022
15
be considered and has to be evaluated by the court to consider
the bail plea of the accused.
In the recent judgment of Hon’ble Apex Court in the case
of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it is
observed that:
“reasonable grounds” means something 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 overlooked
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.
Further the Hon’ble Apex Court in the case of State of
MP
Vs.,
Kajad
reported
in
2001(7)SCC
673
while
considering an appeal against an order of the High Court
16
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under subclause (ii) of clause (b) of Section 37(1).
For granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the petitioner is not guilty of the
offences with which he is charged and further that he is not
likely to commit any offence while on bail. It has further to be
noticed that the conditions for granting the bail, specified in
clause (b) of subsection (1) of Section 37 are in addition to the
limitations provided under the Code of Criminal Procedure or
any other law for the time being in force regulating the grant
of bail. Liberal approach in the matter of bail under the Act is
uncalled for.”
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
“3. In view of Section 37(1)(b) of the Act unless 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 alone will entitle him to a bail. In the
present case, the petitioner attempted to secure bail on
various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)(b) of
17
CCH-33
Crl.Misc.8586/2022
the Act. At this stage of the case all that could be seen is
whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioner or not. At this juncture, we cannot say that the
petitioner is not guilty of the offence if the allegations made in
the charge are established. Nor can we say that the evidence
having not been completely adduced before the Court that
there are no grounds to hold that he is not guilty of such
offence. The other aspect to be borne in mind is that the
liberty of a citizen has got to be balanced with the interest of
the society. In cases where narcotic drugs and psychotropic
substances are involved, the petitioner would indulge in
activities which are lethal to the society. Therefore, it would
certainly be in the interest of the society to keep such persons
behind bars during the pendency of the proceedings before
the court, and the validity of Section 37(1)(b) having been
upheld, we cannot take any other view.”
As per the enunciation of law in the afore said dictums’ it is
clear that no person shall be granted bail unless the two
conditions are satisfied, i.e., the satisfaction of the court that
there are reasonable grounds for believing that the petitioner
is not guilty and that he is not likely to commit any offence
while on bail.
In the present case the petitioner herein is
intercepted with huge trolley bags at international Airport,
18
Bengaluru, when the baggage was intercepted and checked,
14.52 Kgs., of heroin was found. The petitioner herein failed to
give appropriate answers for carrying the commercial quantity
of heroin concealed inside the bag. Though he has contended
that he was instructed to carry a chemical strain cleaner, but
no document placed by him to show that he had carried the
chemical strain cleaner in the baggage. Initially he has failed
to answer the queries of DRI.
Later he has stated that
chemicals are concealed but the said chemical stated by the
petitioner is without any document. On checking the article
with DD kit it is found to be huge quantum of heroin i.e., to
the tune of 14.52 Kgs., which is a commercial quantity of
contraband.
At this stage, there is primafacie material
available against the petitioner in regard to transporting
commercial quantity of heroin. In the result, I proceed to hold
that the petitioner herein has not made out any grounds to
entertain his plea for bail. Accordingly, I answer point No.1 in
the Negative.
12. Point No.2:- In the result, I proceed to pass following:
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Crl.Misc.8586/2022
ORDER
The petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby rejected.
[Dictated to the stenographer, directly on the computer, typed and
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 23rd day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*