Anticipatory bail under Section 438 of Cr.P.C. is to be granted sparingly, especially in serious drug-related offences, where custodial interrogation is necessary for a proper investigation.

ORDER :

1. This Criminal Petition, under Section 438 of Cr.P.C. has been filed by the Petitioner/A.5, seeking anticipatory bail in Cr. No. 100/2023 of Kasimkota Police Station, Anakapalli District.

2. The above crime was registered against the Petitioner herein and others for the offence punishable under Sections 20(b)(ii)(c) r/w 8 (c), section 25 of NDPS Act, 1985.

3. The Prosecution's case, in brief, is that, on receipt of credible information about the illegal transportation of Ganja, on 02.03.2023 at about 09.00 AM, the Sub Inspector of Police, Kasimkota P.S. along with his staff and mediators went to Thallapalem junction, where they found A.1, who was transporting 50 kgs of Ganja in an Auto. When the Respondent Police questioned the A.1, he confessed that the said Ganja belongs to A.2 and A.3 and they were acting as Pilots. On 04.03.2023, the Police has arrested the A.2 and A.3. A.2 confessed that he bought the alleged 50 kg Ganja from A.4 and A.5. A.1 to A.3 were arrested by the Police. Based on the mediators report, a case in above crime was registered.

4. Learned counsel for the Petitioner submits that Petitioner is innocent and he has been falsely implicated in this case; no specific overt acts are attributed against the Petitioner; based on the confessional statement of co-accused, the Petitioner is arrayed as accused. Except the said confessional statement, no other material has been collected to connect the Petitioner in the commission of the offence; Petitioner is ready to cooperate with the investigation and he is ready to furnish sufficient surety.

5. Learned Assistant Public Prosecutor filed counter and submitted that the police arrested A1 to A.3 and they confessed that, previously, they used to procure the Ganja from the Petitioner/A.5; during the course of investigation, the investigation officer secured the CDRs of all the accused including the Petitioner/A.5 and also placed a copy of the CDRs along with the counter; investigation is at crucial stage and charge sheet is not yet filed; the Petitioner/A.5 has no previous antecedents. Hence prayed to dismiss the anticipatory bail application to the Petitioner.

6. I have heard both sides. Learned counsel on both sides reiterated their submissions on par with the contentions presented in the petition as well as in the counter-affidavit.

7. It is trite law that the power to grant a pre-arrest bail under Section 438 of the Cr.P.C. is extraordinary in nature and is to be exercised sparingly. Thus, pre-arrest bail cannot be granted in a routine manner. The Hon'ble Apex Court, adverting to its previous precedents, has discussed the parameters to be considered while considering pre-arrest bail applications, in the case of State of A.P. v. Bimal Krishna Kundu, (1997) 8 SCC 104 has held as under:

“8. A three-Judge Bench of this Court has stated in Pokar Ram v. State of Rajasthan, (1985) 2 SCC 597 : 1985 SCC (Cri) 297 : AIR 1985 SC 969: (SCC p. 600, Para 5)

“5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal.”

9. Similar observations have been made by us in a recent judgment in State v. Anil Sharma, (1997) 7 SCC 187 : 1997 SCC (Cri) 1039 : JT (1997) 7 SC 651: (SCC pp. 189-190, Para 8)

“The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest.”

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12. We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in favour of granting anticipatory bail to the respondents. It is disquieting that implications of arming the respondents, when they are pitted against this sort of allegations involving