The court emphasized that anticipatory bail under Section 438 of Cr.P.C. is to be granted sparingly, especially in cases involving serious allegations under the NDPS Act.

ORDER :

T. MALLIKARJUNA RAO, J.

1. This Criminal Petition, under Sections 438 of Cr.P.C., has been filed by the Petitioner/A.1, seeking anticipatory bail, in Crime No.73 of 2023 of Sullurpeta Police Station, Tirupathi District.

2. A case has been registered against the Petitioner herein and others for the offences punishable under Sections 8(c) r/w 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’).

3. The prosecution alleges that A.1 runs a ganja operation from Bennabopalapatnam in Anakapalli District, procuring the substance from the Andhra Odisha border. A.3 facilitates the purchase from A.1 and sells it to A.2 in Sri Lanka. On June 3, 2023, A.3 sent A.4 and A.5 to Narsipatnam in Bolero Vehicle AP39 V 1968 to acquire ganja from A.1. A.1, aided by A.8, A.9, and A.10, loaded 120 packets onto the vehicle. A.1 then dispatched A.8 to A.10 in the Bolero vehicle to deliver the ganja to A.3 in Chennai. On 05.06.2023, at Nellore Grand Hotel, A.3, accompanied by A.6 and A.7, picked up A.10 from the Bolero vehicle, instructing A.4 via cell phone. A.3 led the Bolero towards Chennai. At 8:00 AM, Police intercepted the Bolero at Holy Cross Road, detaining A.3 and three others in the Innova car. Upon confession, police searched the vehicle and found 120 ganja packets weighing approximately 240 kgs, valued at Rs.48,00,000/-. The Police seized the ganja packets, five cell phones, Bolero vehicle and the Innova car under the cover of mahazarnama.

4. Learned counsel for the Petitioner submits that Petitioner is innocent and 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. The Learned Assistant Public Prosecutor filed a counter, contending that the Petitioner is habituated to conducting Ganja business by supplying Ganja to others. During the investigation, the Investigating officer tried to secure the Petitioner’s phone number from A.3, but A.3 directly met the Petitioner. Due to the unavailability of the Petitioner’s phone number, the investigating officer was unable to obtain Call Detail Records (CDRs) of the Petitioner/A.1. Consequently, the Learned Assistant Public Prosecutor prayed for the dismissal of the anticipatory bail application filed by 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. 189-90, para 8) 

“The consideration wh