ORDER:

This Criminal Petition is filed under Section 438 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail to the petitioners/A-1 and A-3 in connection with Crime No.300 of 2020 of Pamarru Police Station, Krishna District, registered for the offence punishable under Sections 269, 270, 273, 328 r/w 34 of Indian Penal Code, 1860 (for short IPC), Section 5(1) and 22 of Cigarettes and Other Tobacco Products Act, 2003 (for short COTP Act) and Section 20 (b) r/w Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).

2. The case of the prosecution is that on credible information about illegal transportation of ganja and banned gutkha and khainee products, while the police were conducting vehicle check, they found two persons observing in lorry body by removing tar bench tied, on seeing the police, they tried to skulk away. But the police caught hold of A-2 to A-4 and A-4 confessed that on instructions of his owner i.e. A-3 received banned gutka, khainee and ganja from A-1 who is resident of Orissa State and he reached the scene of offence to hand over the same to A-2. While they were inspecting the stock, police came and caught them. On verifying the lorry they found four boxes along with gutka, khainee products, they have seized 2 KGs of ganja from their possession. A-2 and A-4 were arrested and remanded to judicial custody. Basing on the confession of A-2 and A-4, the petitioners are arrayed as accused.

3. Heard Sri S.M.Subhan, learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-

State.

4. Learned counsel for the petitioners/A-1 and A-3 submits that while conducting search and seizure, the police have failed to follow the procedure contemplated under NDPS Act. The contraband that is seized is 2 KGs which is not a commercial quantity and the accused are four in number, if the same is apportioned between the accused, it does not come under commercial quantity. He submits that the petitioners/A-1 and A-3 were not even present at the alleged scene of offence which is evident from the FIR. Further, basing on the confession of the other accused, the present petitioners are arrayed as accused. He submits that the confession of the other accused is not admissible piece of evidence basing on which a case can be registered. He further submits that the investigation is completed except filing of charge sheet, as such the petitioners’

case may be considered.

5. On the other hand, learned Additional Public Prosecutor submits that the petitioners are alleged to have committed the offence under the provisions of NDPS Act, which is grave in nature and even in the remand report of the other accused, it is stated that the petitioners are yet to be apprehended. The petitioners who are continuously evading arrest are not entitled for pre arrest bail. He further submits that the petitioners belong to Orissa and Telangana State respectively, as such they are not entitled for pre arrest bail.

6. Having heard the learned counsel on either side, it is appropriate to look at Section 8 of the NDPS Act reads thus:

Prohibition of certain operations.—No person shall—

(a) cultivate any coca plant or gather any portion of coca plant;

or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter- State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, t