Narcotic Drugs – An instrument in causing death or death blow infliction on the Youth. : Telangana High Court

Dharavath Aravind vs The State Of Telangana on 4 January 2021 Telangana High Court Dharavath Aravind vs The State Of Telangana on 4 January 2021 Bench: T.Vinod Kumar THE HON BLE SRI JUSTICE T.VINOD KUMAR CRIMINAL PETITION No.64620 This criminal petition under Sections 437 and 439 of the Code of Criminal Procedure 1973 is filed seeking regular bail. The petitioners herein are arrayed as accused No.1 and 2in Crime No.3720 on the file of P.S. Bhadrachalam Town Kothagudem District. The offences alleged against the petitioners are under Sections 8(c) read with Section 20(b) of NDPS Act 1985 2. Heard learned counsel for the petitioners and learned Public Prosecutor appearing for the respondent State and perused the record 3. With the consent of the learned counsel appearing for the parties the criminal petition is taken up for hearing through Video Conferencing in the virtual Court today i.e. 22.12.2020 4. Learned Counsel for the petitioners would submit that the petitioners in particular the petitioner No.1 is the owner and driver of the vehicle in which contraband substancewas being transported after the said vehicle hired by accused No.4 while the petitioner No.2 got into the car only to give company to the petitioner A 1 during their travel from East Godavari to Hyderabad Learned Counsel for the petitioner though sought to urge for grant of regular bail to the petitioners on humanitarian grounds by stating that petitioner No.1 is the sole bread winner for his family and is eking out his livelihood by running the car on hire had agreed to carry the parcel weighing about 43 kgs. at the behest of accused no.4 for being delivered at its destination. It is submitted by the learned counsel that as the petitioners are in judicial custody since 22.10.2020 the family of the petitioner no.1 is placed in a pathetic situation without any means for their survival. Learned counsel would submit as a cab driver the petitioners are not required to know as to the contents of the parcel which they were required to deliver at its destination. Learned Counsel for the petitioner would also submit that the offending material was only about 43 kgs and if apportioned between the petitioners the quantity found and seized is in excess of permitted commercial quantity only marginally. Learned Counsel for the petitioner would further submit that the respondent authority while seizing the narcotic substance and apprehending the petitioners did not comply with the mandatory requirement of Section 42 and 50 of NDPS Act and as such the entire process stands vitiated. Learned counsel would further submit that there are no antecedents of petitioners involvement in similar offences earlier. It is also submitted that there is no material to connect the petitioners with the offence except the confessional statement said to have been given to the investigating agency. Learned counsel would submit that since all the witnesses were examined and their statements recorded by the investigating authority the petitioners may be granted bail. In support of his submissions learned counsel has placed reliance on the order of a coordinate bench of this court in Crl.P. No. 66320 Indian Kanoon Dharavath Aravind vs The State Of Telangana on 4 January 2021 5. Per contra the learned Public Prosecutor by drawing attention of this Court to the judgment of the Hon ble Apex Court in State of Kerala v. Rajesh1 would submit that NDPS Act being a special enactment granting of bail for contravention of 1 2020 SCC Online SC 81 provisions of the Act is circumscribed by the provisions of Section 37 of NDPS Act 6. Learned Additional Public Prosecutor would submit that before this Court before granting bail to the accused involved in the offences under NDPS Act is required to record its satisfaction of existence of reasonable grounds namely i) Court should be satisfied that there are reasonable grounds for believing that the petitioners are not guilty of such offence and ii) petitioners are not likely to commit any offence while on bail. Learned Additional Public Prosecutor would submit that there is no plausible explanation forthcoming from the petitioner for traveling all the way from the native place in Nalgonda District to East Godavari District and carrying the offending material from East Godavari to Hyderabad at the behest of A 4 unless and until they are involved in the above offence. But for the interception and search of the vehicle by the respondent authority whereat the contraband material was found and seized the petitioner would have continued with same activity 7. Learned Additional Public prosecutor would further submit that investigation into the crime registered is in progress and as of today six witnesses are examined. It is further submitted by the learned Additional public prosecutor that the co accused no. A.3 and A.4 in the above crime are still absconding and FSL report is also awaited. Further the learned Additional Public prosecutor would submit that as per the confessional statement given by the petitioners to the respondent investigating authority as recorded in remand report it would be clear that the petitioners were involving themselves in commission of the offence under NDPS Act to earn more money in easy way by undertaking transport of ganja secretly thus the claim of innocence being pleaded now cannot be accepted. In so far as the other submission of the learned counsel for the petitioners about non compliance mandatory requirement of Section 42 and 50 of NDPS Act is concerned learned Additional Public prosecutor would submit that the said provisions do not stand attracted since no personal search of the petitioners was taken and the offending substance was found in the vehicle during search. In support of the above submission learned Additional Public Prosecutor placed reliance on the Apex court judgement in Union of India v. Ram Samujh and Ors 2 8. Having given due consideration to the submissions made as above and in view of the law laid down by the Apex Court this Court is firstly required to satisfy itself as to whether reasonable grounds exists for grant of bail or not. The usage of term reasonable grounds in the context of non obstante clause with which Section 37 of NDPS Act signifies that it is not merely prima facie case but something more i.e. substantial probable causes for believing that the accused is not guilty of the alleged offence. In the facts of the present case the petitioners were found possessing the prohibitedsubstance while transporting the same. Further the confessional statement given by the petitioners to the investigating authority upon seizure would clearly go to show that the petitioners were involved in dealing with the narcotic substance to earn money in easy way though not being involved caught by the law enforcing authority any time earlier. Though it is submitted that the family of the petitioner no.1 is suffering severely it is only the petitioner who is to be blamed for such 29 SCC 429 Indian Kanoon Dharavath Aravind vs The State Of Telangana on 4 January 2021 suffering. The petitioners without realizing that as a result of their acts in dealing with narcotic substance many families are suffering due to the ill effects of the narcotic substance having a lasting effect on the health which is more harsh to bear than loss of a member of the family upon being murdered. At this point it is apposite to refer to the observations of the Hon ble Supreme Court in Ram Samujh casewherein it is observed that It should be borne in mind that in murder case accused commits murder of one or two persons while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable: it causes deleterious effects and 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 9. In the light of the above and considering the facts of the case this court does not find that the petitioners have made out reasonable grounds to the satisfaction of this court for grant of bail as grant of bail under special Acts like NDPS Act is an exception while negation of bail is the rule as held in State of Madhya Pradesh v. Kajad3 10. Further even the other submission of the learned counsel for the petitioner with regard to non compliance mandatory requirement of Section 42 and 50 of the NDPS Act is concerned 3 2001) 7 SCC 673 the same is also without any substance in view of the authoritative pronouncement of the Hon ble Supreme Court in State of Himachal Pradesh v. Pawan Kumar4 reiterated in Jeet Ram v. Narcotic Central Bureau5 wherein it was held that provisions of Section 50 of NDPS Act are applicable only in case of personal search. As in the facts of the present case the narcotic substance was found in the vehicle during search of the vehicle the claim of the petitioner that the mandate of provisions of Section 50 of the NDPS Act not being complied is without basis and the submission in this regard is liable to be rejected 11. Therefore there is no merit in the bail petition and is accordingly dismissed reserving liberty to the petitioners to file fresh petition(s) at an appropriate stage in accordance with law if so advised It is clarified that the observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter 12. Pending miscellaneous petitions if any shall stand closed in the light of this final order JUSTICE T.VINOD KUMAR Date: 04.01.2021 MRKR 4 2005) 4 SCC 350 5 2020 SCC Online SC 735 Indian Kanoon 

Summary: It should be noted that, in the case of murder, the accused kill one or two people, while the persons dealing with drugs are towers to death or blow the lives of innocent young people who are vulnerable: they have deleterious effects and deadly effects on society, they are a danger to society, even when temporarily released. Reason can be a major stake and involve illegal profit, was referred by Justice T.Vinod Kumar from the Telangana High Court in the matter of Dharavath Aravind versus State of Telangana [CRIMINAL PETITION No.6468 of 2020] This order was passed for the facts where the learned counsel for petitioner particular petitioner No.1 is a vehicle owner and driver who was transported by contraband substance (cannabis) after the vehicle was rented by accused No.4, while the petitioner No.2 only came into car to give the petitioner/A-1 company during their trip from East Godavari to Hyderabad. Learned Counsel, however, tried to urge regular bail for humanitarian reasons by stating that petitioner No.1 is his family’s only breadwinner and his livelihood is being provided by hiring the car, agreed to carry a parcel weighing approximately 43 kg, on the request of the accused No. 4 for having been delivered to his destination. Furthermore, a learned counsel would argue that there is no record previously of involvement of petitioners in similar offences. It is also argued that there is no material to link petitioners with the offence except for the declaration that the investigating agency has been made confessional. Learned counsel would argue that the petitioners could be granted bail because all the witnesses have been examined and because their declarations have been recorded by the investigating authorities. The learned lawyer relies on the orders of this court’s coordinating bench in Crl.P. No. 6634, 2020, in support of his submissions. The additional learned public prosecutor would further argue that the criminal investigation is underway and that six witnesses have been examined as of today. The learned supplementary public prosecutor further states that the co-accused No. A.3 and A.4 are still abstaining from the above crime and FSL is also awaiting the report. Furthermore, according to the confessional declaration given by the petitioners to the investigating authority in the RE, the learned Additional Public Public Prosecutor would submit that in the retention report it would be clear that the petitioners involved themselves in the commission of the offence under the NDPS Act to make more money easily by secretly transport the ganja, hence the claim. For the rest of the apprenticed lawyer’s submission for the petitioners on non-compliance by the obligatory requirements of Sections 42 and 50 of the NDPS Act, the learned public prosecution would argue that such measures were not attracted, since the petitioner was not searched for personally and the offending substance was detected during the search in the vehicle. The learned public prosecutor relied on an Apex court judgement in the Union of India v. Ram Samujh and Ors in support of the above presentation. This Court, having taken due account of the presentations made as above, must first determine whether a reasonable ground for granting a bail exists and in view of the law established by the Apex Court. The use of the expression “reasonable grounds” within the framework of the non-obstante clause in which Article 38 of the NDPS Act implies that it is not only a prima facie case but also something more. The petitioners were found in the circumstances of this case to have the prohibited substance (narcotics) while carrying them.