Andhra Pradesh High Court – Amravati
Namdeo Ashruba Nakade vs Union Of India on 11 March, 2025
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL PETITION No.727 of 2025
ORDER:
1. This criminal petition under sections 480 and 483 of the
BNSS is filed by the petitioner to grant regular bail in connection
with S.C.No.144 of 2024 of learned II Additional District Judge –
cum – Metropolitan Sessions Judge, Vijayawada for the offences
punishable under Sections 8(c) read with 20, 28 and 29 of the
NDPS Act.
2. Heard arguments of Sri A.Sai Naveen, the learned counsel
for petitioner and Smt.Shanti Chandra, the learned standing
counsel for respondent/DRI.
3. This is a renewal regular bail petition. Opposing the bail
petition, an elaborate counter is filed by the respondent. Earlier,
the prayer for regular bail made by this petitioner in Crl.P.No.5246
of 2024 was declined by this court by an order dated 26.09.2024
holding that at that stage of the case it was not found fit to
consider the bail plea.
4. The facts on record are that the petitioner/accused is a
resident of Chanhatola Post Patsara, Ashiti Taluka, Beed District,
State of Maharashtra. He is owner cum driver of lorry bearing
registration No.MH 20 CT 6823. Acting in pursuance of credible
information received about illicit transportation of Cannabis also
known as Ganja, the officers of the DRI intercepted the above
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vehicle at Enikepadu junction, Vijayawada, State of Andhra
Pradesh at 12.00 noon on 07.11.2023. On search of the vehicle,
they found 731.075 Kgs of Ganja in the trolly of the lorry. After
complying with all the legal formalities, the accused was arrested
and the lorry and the contraband were seized. Investigation
progressed and stood concluded and a charge sheet dated
03.05.2024 was laid before learned II Additional Sessions Judge
– cum – Metropolitan Sessions Judge, Vijayawada where it was
registered as S.C.No.144 of 2024. From time to time, the accused
has been remanded.
5. It is in the context of the above-mentioned facts, the prayer
for bail has fallen for consideration.
6. Learned standing counsel for respondent/DRI strongly
opposed the bail plea stating that the case is pending before a
court in Andhra Pradesh and the accused belonged to State of
Maharashtra and the experience has shown that such accused
when released on bail never turn up to the court and
consequently, cases could not be proceeded against them and
NBWs have been pending for quite a long time as the accused in
those cases have been absconding. Along with the additional
material papers, examples of such cases with necessary details
are placed on record. The further submission of the learned
standing counsel for respondent/DRI is that since the case is
about commercial quantity of Ganja, presumption under section
37 of the NDPS Act operates and the accused may not be
released on bail and cited:
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7. Learned counsel for petitioner/accused submits that there
are procedural violations which should favourably be considered
while considering the bail plea and that the petitioner has been in
judicial custody for a long time and that there are bleak prospects
of trial being taken up in the near future and in such cases plea of
the accused may be favourably considered. To substantiate the
contention that it is unlikely that the trial in this case would take
place in the near future, the learned counsel has placed on record
the pendency of total number of cases before the trial court and
the usual number of cases that are being disposed of in a
calendar year and the list of targeted matters before the court
below. Based on such statistics, the submission made is that in
the next few years, it is unlikely that the trial court would be able
to commence trial in this case.
8. The further submission of the learned counsel for
petitioner/accused is that respondent/DRI need not hold
apprehensions of accused absconding in this case and placed on
record, the sworn affidavit of elder brother of this petitioner. The
affidavit is sworn by Sri Mhatardeo Ashruba Nakade. On
06.03.2025 during the hearing of this bail petition, the said
individual appeared online and affirmed that he had given the
undertaking affidavit on 01.01.2025. He further stated that he is a1
2022 INSC 730
2
2023 SCC Online Ker 6707
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Aadhar copy and copy of his identity card are placed on record.
The submission of the elder brother of the petitioner and contents
of the affidavit are to the effect that the elder brother states that
he has full control over his brother/accused and he is capable of
producing him before the court concerned as and when directed
and prays for release of the accused on bail.
9. The further submission of the learned counsel for
petitioner/accused is that the petitioner may also be directed, in
the event of granting bail, to make available his location through
mobile phone by pairing it with the mobile phone of the
investigating officer round the clock. In this regard, learned
counsel for petitioner cited Puranmal Jat V. State of Rajasthan3
to the effect that such order could be passed.
10. Having considered the rival submissions, the following
aspects are to be stated:
Section 37 of the NDPS Act reads as below:
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;
3
2023 SCC Online SC 1418
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(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–
(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 or
any other law for the time being in force on granting of bail.
The above provision refers to section 19 which provides
punishment for embezzlement of opium by cultivator ; section 24
provides punishment for external dealings in Narcotic Drugs and
Psychotropic Substances where the transactions take place with
persons outside India; Section 27A provides for punishment for
financing, illicit traffic and harbouring offenders. It is evident from
the record that the present case does not fall under any of the
above categories of offences. The notification of the Central
Government indicates that Ganja in a quantity more than 20 Kgs
is commercial quantity. In the present case, commercial quantity
of Ganja is involved.
11. Crime was detected on 07.11.2023. Investigation was over
on 03.05.2024. On 06.03.2025 as well as today, even charges
were not framed by the trial court. Thus, the petitioner/accused
has been in judicial custody for the last one year four months i.e.,
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from 07.11.2023. He being an under trial prisoner, it is always
expected that trial court would show expedition in taking up trial of
such cases. Even after ten months after filing of the charge sheet,
the trial court could not take up the case for hearing on charges.
Looking at the pace of disposals as presented by the learned
counsel for petitioner, it is quite unlikely that the trial court would
be in position to take up this case in the near future.
12. In Special Courts bill, 1978, Re, (1979) 1 SCC 380, their
Lordships have stated that “it is common knowledge that currently
in our country criminal courts excel in slow motion. The procedure
is dilatory, dockets are heavy……”.
In Achint Navinbhai Patel alias Mahesh Shah V. State of
Gujarat (2002) 10 SCC 529, their Lordships held that “…it has
been repeatedly stressed that NDPS cases should be tried as
early as possible because in such cases normally the accused
are not released on bail…”
In Jalaluddin Khan V. Union of India (2024) 10 SCC 574,
their Lordships held that bail is the rule, jail is the exception even
when offences under special Acts are alleged to have been
committed.
In Ranjithsing Brahmajeetsing Sharma V. State of
Maharashtra (2005) 5 SCC 294, their Lordships held that there is
no machinery available to the court to ascertain that once the
accused is enlarged on bail, he will not commit any offence
whatsoever. Therefore, it is the facts on record that alone be
considered.
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13. In the case at hand, investigative needs were over, and
charge sheet was already laid. Trial before the special court is
unlikely to take place in the immediate future. The address of the
accused is not in dispute. The charge sheet does not indicate
criminal antecedents against the petitioner. His continuous
availability for smooth conduct of the trial is assured by the
learned counsel and is demonstrated through the elder brother of
the accused. In the context of these aspects, this court holds that
the petitioner has made out a case for his release on regular bail.
14. In these circumstances, this criminal petition is allowed in
the following terms.
1. The petitioner shall be enlarged on bail on executing a
personal bond for a sum of Rs.75,000/- (Rupees Seventy
Five Thousand only) with two sureties of the like sum each
to the satisfaction of the learned II Additional District and
Sessions Judge – cum – Metropolitan Sessions Judge,
Vijayawada and one such surety should be his brother/ Sri
Mhatardeo Ashruba Nakade. The other surety shall be one
from the State of Andhra Pradesh.
2. The petitioner is directed to deposit his Passport before the
learned trial court and he shall not leave the country without
prior permission of the court. If he does not hold a passport he
shall file a sworn affidavit to that effect before the learned trial
court.
3. The petitioner shall not indulge in similar acts of crime.
4. The petitioner must regularly participate in the pre-trial and
trial process without fail before the competent court.
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5. The petitioner shall brief his advocate before the trial court
and give an undertaking to the court that notice to his
counsel before the trial court should be considered as
sufficient notice to him/ the accused.
6. The petitioner must inform the investigation officer and the
trial court about any change of his address.
7. The petitioner shall make available his location through
mobile phone by pairing it with the mobile phone of the
investigating officer round the clock. Any change of his
mobile phone number or the instrument/ mobile phone shall
be informed to the investigating officer.
8. Violation of any of these conditions by the
petitioner/accused shall entitle the respondent/DRI to seek
necessary orders from this Court.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date:11.03.2025
Dvs
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Crl.P.No.727 of 2025
THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL PETITION No.727 of 2025
Date: 11.03.2025
Dvs
