Point of Law: while considering the bail petition despite the language employed in the section, court must develop a delicate balance between judgment of acquittal, conviction and bail and the provision should be construed reasonable.

ORDER :

The criminal petition is filed under Sections 437 & 439 of Cr.P.C seeking regular bail to the petitioners/A1 to A3 in connection with crime No.90 of 2021 of Kirlampudi Police Station, East Godavari District, registered for the offence punishable under Section 8 (c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).

2. The case of the prosecution is that on 10.05.2021, on receiving credible information about illegal transportation of ganja, S.I. of Police, Kirlampudi Police Station along with mediators reached Krishnavaram Toll Plaza and while they were conducting vehicle check they observed that drivers of one cream color Ashok Leyland Mini van bearing registration No.AP 39 TN 8938 and red color car bearing No. AP 05 AN 3377 tried to turn the vehicles on seeing Police. A3 escaped from the spot but A1 and A2 were apprehended and on enquiry, they confessed that they were transporting ganja. Police seized 600 Kgs of ganja from their possession under mediators’ report and basing on the said report, the present crime is registered. A3 who escaped from the spot was arrested on 15.05.2021.

3. Learned Additional Public Prosecutor filed counter stating that A1 and A3 specifically confessed that they have transported ganja several times and A3 also confessed that crime No.150 of 2017 of Tuni Rural Police Station registered for offences under Sections 270, 417 and 498A of IPC and Sections 3 and 4 of D.P. Act and crime No.317 of 2019 registered by Eluru Rural Police Station registered for the offence under the NDPS Act are pending against him. Even according to the confession of A1, thrice he has transported ganja to Tamil Nadu along with A3. It is also stated that there is ample evidence against the petitioners to prove their guilt beyond reasonable doubt and as the petitioners herein earlier involved in similar offences, bar under Section 37 of the NDPS is applicable to them, as such they are not entitled for bail.

4. Heard Sri Medisi Ratna Rao, learned counsel for the petitioners and learned Additional Public Prosecutor for respondent-State.

5. Learned counsel for the petitioners submits that petitioners have no criminal antecedents and Police have completed investigation and recorded statements of important witnesses. He submits that the petitioners undertake to cooperate with investigation. He submits that petitioner Nos.1 and 2 were arrested on 10.05.2021 and petitioner No.3 was arrested on 15.05.2021 and since they have been languishing in jail, as such their case may be considered for grant of bail.

6. Learned Additional Public Prosecutor submits that investigation is completed and charge sheet is filed on 13.09.2021, but in view of the criminal antecedents against the petitioners, they are not entitled for bail.

7. It is appropriate to look at the language employed in Section 37 of NDPS Act, which reads thus:

37. 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 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.

8. In Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, the Hon’ble Apex Court has uph