Sirigiri Srinivasulu V. Union of India, Narcotics Central Bureau

CRL.P/1532/2023

AI Insights

The case involves Sirigiri Srinivasulu, the petitioner, who sought bail under Section 439 of the Cr.P.C. for charges related to the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The petitioner was accused of supplying ganja to co-accused persons, which was substantiated by financial transactions amounting to Rs.3 Crores linked to drug trafficking. The court considered the severity of the charges, the evidence presented, including the seizure of 139 kg of ganja, and the implications of Section 37 of the NDPS Act, which restricts bail in cases involving commercial quantities of narcotics. The prosecution argued that the financial transactions and the quantity of drugs indicated the petitioner's involvement in drug trafficking, while the defense claimed the petitioner was falsely implicated and had no direct involvement with the contraband.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 703335 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 10-04-2023
• Assessment Year: misc
• Other Referred Cases: State of Kerala and Others Vs. Rajesh and Others, Shoiab Pasha Vs. The State of Karnataka, Union of India Vs. Ram Samujh and Ors., BABUA ALIAS TAZMUL HOSSAIN Vs. STATE OF ORISSA, Durand Didier v. Chief Secy., Union Territory of Goa
• Laws Referred To: Narcotic Drugs and Psychotropic Substances Act, 1985, Code of Criminal Procedure, 1973
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: MANASI KUMAR
• Assessee Lawyers: G MURALIDHAR
• Keywords: Bail application; Commercial Quantity; Financial transactions; Financial transactions; Judicial Custody; NDPS Act
• Section: 27; 37; 28; 23; 25; 42; 27A; 29; 8C; 20(b); 20(b); 439

Judgement Text

" - 1 - CRL.P No. 1532 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2023 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL PETITION NO. 1532 OF 2023 BETWEEN: SIRIGIRI SRINIVASULU (A4), S/O SIRIGIRI OBALUPATI, AGED 41 YEARS, R/AT NO.2-20-8G/61, SIRIGIRI COLONY, ADARSHANAGAR UPPAL, HYDERABAD – 500 039. …PETITIONER (BY SRI. G. MURALIDHAR, ADVOCATE) AND: UNION OF INDIA, NARCOTICS CENTRAL BUREAU THROUGH INTELLIGENCE OFFICER, NCB, MHA ZONAL UNIT, BANGALORE. 7/1-2, PRIYANKA VILLA, RAMANA GARDEN, KATTIGENAHALI, BAGALUR MAIN ROAD,YELAHANKA, BANGALORE – 560 063. REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, NCB, HIGH COURT, BANGALORE – 560 001. RESPONDENT (BY SMT. MANASI KUMAR, ADVOCATE) Digitally signed by DHARMALINGAM Location: HIGH COURT OF KARNATAKA - 2 - CRL.P No. 1532 of 2023 THIS CRIMINAL PETITION IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB FILE NO.48/1/19/2021/BZU, NOW SPL.C.C.NO.834/2022, ON THE FILE OF XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE BENGALURU. THIS CRIMINAL PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Heard Sri. G. Muralidhara, learned counsel for the petitioner and Smt. Manasi Kumar, learned Counsel for the respondent-Union of India, Narcotics Central Bureau and perused the records. 2. Present petition is filed under Section 439 of Cr.P.C. with the following prayer: “WHEREFORE, the petitioner above named respectfully prays that this Hon'ble Court may be pleased to release him on bail in NCB No.481/19/2021 BZU, now Spl.C.C.No.834/2022 on the file of XXXIII Additional City Civil and Sessions Judge, Bangalore for offences punishable under Section 8C, 20(b), ii C, 23, 25, 27, 27A, 28 and 29 of NDPS Act in the interest of justice and equity.” - 3 - CRL.P No. 1532 of 2023 3. The brief facts of the case are as under: Information report as is contemplated under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ' NDPS Act ' for short) was lodged with the Special Court. The report contained materials which would prima facie show that the suspected persons by name Ramdhin Yadav, Aslam, Kamalesh Kumar, Ramlal Sharif, Abdul Razak, Rasheed, Khalander used to purchase ganja from the petitioner herein and they were selling the same in the market for the prospective customers. The authorized officer made a preliminary enquiry and issued notice to the suspected persons including the petitioner herein. The petitioner did appear before the Narcotics Central Bureau on 03.10.2021. 4. After preliminary examination of the petitioner, he was arrested by the authorized officer and his voluntary statement has been recorded. The voluntary statement so recorded is tallying with the information collected by the - 4 - CRL.P No. 1532 of 2023 NCB officer and he was produced before the Special Court. The Special Court in turn remanded the petitioner to the judicial custody. 5. The attempt made by the petitioner in obtaining an order of grant of bail is turned down by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru (CCH.33) in Crl.Misc.No.3930/2022 by order dated 20.05.2022. Thereafter, the petitioner is before this Court. 6. Sri.G.Muralidhara, learned counsel for the petitioner has sought for grant of bail on the following grounds: “6. The Petitioner submits that he is innocent of the allegations made against him, he has been falsely implicated in this case at the instance of his ill-willers 7. The Petitioner submits that there is no prima facie case against him for the reason that admittedly no contraband substance has either been recovered from him or seized at his instance and there is no evidence to the extent that he has supplied ganja to the Accused Nos. 1 and 2. 8. The Petitioner submits that the allegations - 5 - CRL.P No. 1532 of 2023 against him are too remote to be believed and he has got a valid defence. 9. The Petitioner submits that he is a law abiding citizen making his livelihood as licensed electrical contractor, certificate of registration issued by the Labour Department, Government of Telangana is herewith produced, vide Annexure-J. He is also an Income Tax Assessee, an attested copy of one of the Income Tax Returns is herewith produced, vide Annexure-K. 10. The Petitioner submits that the Accused Nos.5, 7 and 6 are granted bail by this Hon'ble High Court in Crl.Petition No.8542/2022, Crl.Petition No.3278/2022 and 4578/2022, certified copies of the order passed on the said Petitions are herewith produced, vide Annexure-L, Annexures-M & N respectively. 11. The Petitioner submits that the alleged offences are not punished with death or with imprisonment for life. 12. The Petitioner submits that he has got a permanent place of residence, he undertakes to abide by any conditions which this Hon'ble Court may impose. 13. The Petitioner submits that he is in judicial custody from 04-10-2021 in so far one year and four months has passed, his continued detention in jail is adversely affecting his physical ad mental health, he has got his wife, children and aged mother who are depending on him for their livelihood, but since the Petitioner is in custody, they are starving for their daily food. 14. The Petitioner submits that he had already filed a petition before this Hon'ble Court in Crl. Petition No.4884/2021 (Annexure-H), but it was withdrawn with liberty to file fresh petition. No - 6 - CRL.P No. 1532 of 2023 other petition is pending before any court on the same cause of action.” 7. Reiterating the grounds urged in the bail petition, learned Counsel for the petitioner vehemently contended that in the case on hand, except the voluntary statement given by the petitioner and the statement of the co- accused persons, there is no other material which would prima facie establish that the petitioner had indulged in selling ganja illegally to the other accused persons. 8. He also contended that the accused has been in custody on and from 03.10.2021 and charge sheet has been filed before the Special Court. Therefore, continuation of the accused petitioner in the judicial custody is no longer warranted and sought for grant of bail. As such, the petitioner is entitled for bail. 9. He also pressed into service the ground of parity by contending that accused No.5, 6 and 7 have been granted bail by a co-ordinate bench of this Court and accused No.8 has been granted anticipatory bail. - 7 - CRL.P No. 1532 of 2023 10. Per contra, Smt. Manasi Kumar, learned Counsel appearing for the respondent-NCB opposes for grant of bail by filing detailed written objections. 11. She further contended that more than Rs.3 Crores has been transferred to the account of the accused/petitioner by co-accused persons for purchase of ganja and the same is reflected in the report filed by the authorized officer before the Special Court, which would prima facie establish nexus between the petitioner and the seizure of ganja to a tune of 139 kg. by the authorized officer from the custody of accused Nos.1 to 3. 12. She further contended that the reeipt of huge sum of Rs.3 Crores is not explained by the petitioner though the petitioner has claimed that he is an Electrical Contractor. At the time of recording the voluntary statement, the petitioner no doubt agreed the receipt of the money from the co-accused persons but failed to account the same, which prima-facie establishes that the opinion formed by the authorized officer that the - 8 - CRL.P No. 1532 of 2023 petitioner, who is supplying the ganja illegally to other co- accused persons to sell the same in market stands established and therefore, sought for rejection of the bail petition. 13. She also contended into service that having regard to the seized ganja to the tune of 139 kg, the powers vested in this Court under Section 439 of Cr.P.C., gets insignificant and Section 37 of the NDPS Act would come into play while considering the request of bail by the petitioner and the petitioner has not made out any ground which would entitle him to get an order of bail. 14. In support of her contentions, learned Counsel for the respondent has relied on the following judgments: i) State of Kerala and Others Vs. Rajesh and Others (2020) 12 SCC 122; and ii) Shoiab Pasha Vs. The State of Karnataka in Criminal Petition No.991/2022 dated 04.03.2022. - 9 - CRL.P No. 1532 of 2023 15. She also contended that grant of bail to accused Nos.5 to 7 and anticipatory bail to accused No.8 would not act as parity insofar as the petitioner is concerned as the role assigned to the present petitioner is altogether different from the other accused persons, who have been granted bail. She further contended that this Court itself has rejected the bail insofar as accused Nos.1 to 3 taking note of the allegation leveled against them and as such parity should also act in rejection and sought for rejection of the bail. 16. In the light of the rival contentions, this Court perused the materials on record meticulously. 17. On such perusal of the materials on record, it is seen that the authorized officer is able to seize 139 kgs of ganja from the custody of the co-accused persons. On further enquiry with the persons who have been arrested by the authorized officer, as to from whom they have purchased the ganja, the co-accused persons revealed the name of the present petitioner. Thereafter, the authorized - 10 - CRL.P No. 1532 of 2023 officer has collected the necessary information in the investigation and has found that the petitioner is supplier of ganja to other co-accused persons. The monetary transaction to the tune of Rs.3 Crores that has been credited to the account of the petitioner from the co- accused persons through different bank accounts, prima- facie establishes the nexus between the accused/petitioner and co-accused persons. 18. Sri.G.Muralidhar, learned Counsel for the petitioner however tried to justify the monetary transactions by contending that the petitioner is in fact a Electrical Contractor and in that regard, the amounts have been received from him from co-accused persons. 19. However, at the time of recording the statement of the petitioner when he was summoned to the office of the NCB, he did not reveal so. On the contrary, even at the time of hearing his bail request, there is no material on record which would establish that the amount received by the petitioner from the Bank Account of the co-accused - 11 - CRL.P No. 1532 of 2023 persons is for some other transaction other than the supply of the ganja. Even if it so, it is to be established by the accused during the trial by placing cogent and convincing evidence on record as the prosecution is enjoying the presumption under Section 35 of the NDPS Act. 20. Suffice to say that the material available on record at this stage reveals that the seized ganja being in commercial quantity, the power of the Court in entertaining the petition for grant of bail is restricted in view of Section 37 of the NDPS Act. 21. In a given case, if the seized NDPS is of commercial quantity as is defined under the Act, the court while dealing with an application for grant of bail, cannot be oblivious of the intention of the legislature in enacting Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under: “37. Offences to be cognizable and non-bailable. - 12 - CRL.P No. 1532 of 2023 (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 2[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.]” 22. How, the court has to consider a bail request of the petitioner, who is accused of possessing and transporting NDPS of commercial quantity, is no longer res integra. The Hon'ble Apex Court in the case of BABUA ALIAS TAZMUL HOSSAIN Vs. STATE OF ORISSA reported in (2001) 2 SCC 566, has ruled as under: - 13 - CRL.P No. 1532 of 2023 \"3. In view of Section 37((1)(b) of the Act unless 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 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 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 accused 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 accused 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.\" 18. The menace of drug abuse and consequences on the society at large has been examined by the courts in - 14 - CRL.P No. 1532 of 2023 the country and how such menace of drug abuse is to be curbed is sufficiently and succinctly echoed. In a recent Judgment of the Hon'ble Apex Court in the case of STATE OF KERALA AND OTHERS Vs. RAJESH AND OTHERS reported in (2020)12 SCC 122, it is held as under: \"17. 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 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 nonbailable. It reads thus: “37. Offences to be cognizable and nonbailable.—(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 [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— - 15 - CRL.P No. 1532 of 2023 (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 subsection (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.” (emphasis supplied) 18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are - 16 - CRL.P No. 1532 of 2023 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. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under: (SCC p.104, para 24) 24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, - 17 - CRL.P No. 1532 of 2023 (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.\" - 18 - CRL.P No. 1532 of 2023 19. In the said judgment, the Hon'ble Apex Court explained what is the meaning of reasonable grounds found in Section 37 of the Act and has further held as under: \"21. The expression “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.\" 20. Applying the principles of law enunciated in the aforesaid decisions to the case on hand, taking note of the fact that there is prima-facie material of financial transactions unexplained on behalf of the petitioner between him and the co-accused persons would prima- - 19 - CRL.P No. 1532 of 2023 facie form the nexus between the incident and the accused/petitioner and therefore, the grounds urged in the petition are hardly sufficient for entertaining the request of the petitioner for seeking grant of bail. Consequently, his bail request has to be rejected. 21. Hence, the following: O R D E R 1. The Criminal Petition is hereby rejected. 2. However, having regard to the fact that the petitioner is in custody, the trial Judge is directed to expedite the trial and conclude the same as early as possible. 3. Likewise, the petitioner is at liberty to apply for grant of bail, if there is a positive changed circumstance. Sd/- JUDGE DL "