APHC010265842025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] THURSDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 5541/2025 Between: GANESWAR ACHARYA, S/O. SIDHESWAR ACHARYA, R/O. BILAPUT VILLAGE, NANDAPUR BLOCK, KORAPUT DISTRICT, ODISHA STATE. ...PETITIONER/ACCUSED AND THE STATE OF ANDHRA PRADESH, Rep by its Public Prosecutor, High Court of Andhra Pradesh ...RESPONDENT/COMPLAINANT Petition under Section 437/438/439/482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to direct the Respondent Police to enlarge the Petitioner/Accused No.1 on bail in the event of his arrest in Crime No.01/2025 of Koyyuru P.S., Alluri Sitharama Raju District and to pass such Counsel for the Petitioner/accused: ADAPA SUDHAKAR RAO Counsel for the Respondent/complainant: PUBLIC PROSECUTOR 2 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 The Court made the following: ORDER: The Criminal Petition has been filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) by the Petitioner/Accused No.1 for granting of pre-arrest bail in connection with Crime No.01 of 2025 of Koyyuru Police Station, Alluri Sithrama Raju District, registered for the alleged offences punishable under Sections 111(2)(b) of Bharatiya Nyaya Sanhita (for short ‘the BNS’), 20 (b)(ii)(C), 25, 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the NDPS Act’). CASE OF THE PROSECUTION: 2. Material averments stemming from the prosecution are that on 09.01.2025 at about 09:00 hours near Cheedipalem Village outskirts, Koyuru Mandal, the police intercepted a Bolero goods vehicle and a motorcycle during a vehicle check. On attempting to flee, the police caught the Bolero driver while others escaped. From the vehicle, 16 gunny bags of ganja weighing 417 kgs, a Bolero van, and a cell phone were seized. The accused was arrested based on his confession under a mediator’s report and a case was registered. 3. For more than about six occasions, there is no representation for the Petitioner. An application is filed seeking pre-arrest bail in a case registered for the offence punishable under Sections 20 (b)(ii)(C), 25, 8(c) of ‘the NDPS Act’ in crime No.01 of 2025 of Koyyuru Police Station. 3 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 ARGUMENTS OF THE STATE: 4. Per contra, Ms. P. Akhila Naidu, the learned Assistant Public Prosecutor, opposed in granting of pre-arrest bail stating that investigation is not completed. Some more material witnesses are to be examined. The source of contraband is to be traced out and established to know who the linchpin in the crime is. Investigation is still at nascent stage. Some more witnesses are to be examined and some more accused are to be arrested. The Petitioner is not entitled for grant of pre-arrest bail. Grant of pre-arrest bail is neither a license for commission of a dangerous offence against the society nor a shield or protection for the persons who have allegedly committed grave offence, as per the judgments of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab1 and Sushila Aggarwal v. State (NCT of Delhi)2. If the petitioner is enlarged on pre-arrest bail, he would not be available for the investigation, and he would repeat the same offence. Itis urged to dismiss the bail application. 5. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the petitioner and the learned Assistant Public Prosecutor. I have perused the record. POINT FOR CONSIDERATION: 6. In the light of the case of the prosecution and the contentions of the learned Counsel for both the sides, now the point for consideration is: “Whether the Petitioner is entitled for grant of pre-arrest bail?” 4 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 ANALYSIS: 7. The High Court of Delhi in Joy Mitra v. Narcotics Control Bureau1, a decision relied on by the learned Counsel for the Petitioner, at paragraph Nos.20 to 22, it is held as under: “20. Although this Court is conscious that it should exercise restraint in the grant of pre-arrest bail in NDPS cases, in the peculiar facts of the present case, in the absence of any direct recovery from the applicants and considering that the investigation is already complete, in the opinion of this Court, no purpose would be served by subjecting the applicants to incarceration. The prosecution has also not put forth any cogent arguments as to why the arrest of the applicants is required in the present case. 21. Inasmuch as the bar under Section 37 of the NDPS Act is concerned, it is trite law that when there is no material to link the applicants with the recovery of the commercial quantity of contrabands, the rigors of Section 37 of the NDPS Act would not apply. 22. It has been pointed out that some of the other co-accused persons have already been enlarged on bail on account of the delay in trial. While there is a difference between the considerations in grant of regular bail and pre-arrest bail, it cannot be ignored that the trial is unlikely to conclude expeditiously. No purpose will be served by subjecting the applicants to suffer the threat of impending arrest, only for them to be granted regular bail at a later stage on the ground of delay.” 8. The High Court of Punjab & Haryana in Ashu v. State of Punjab2, a decision relied on by the learned Counsel for the Petitioner, at paragraph Nos.7.3 & 8, it is held as under: “7.3 It is a well established principle of law that at the incipient stage of investigation, when the investigation is still ongoing, the Court must restraint and refrain from undertaking a meticulous examination of evidence collected thus far. The process of investigation is dynamic, and evidence may evolve or be corroborated, as the investigation progresses. However, as anticipatory bail pertains to life and liberty of individual, courts are obligated to strike a balance between safeguarding personal liberty and ensuring the effective administration of justice as also investigation. The final evidentiary value and admissibility of the disclosure statement made by a co-accused fall within the domain of the trial Court and are to be adjudicated during the course of the trial in accordance with established principles of law. However, while adjudicating a plea for anticipatory bail, this court cannot remain oblivious to the circumstances under which the petitioner has been arraigned or implicated, including the nature of the allegations, the evidence linking the petitioner to the offence as well as the specific role attributed to the petitioner in the commission of the alleged offence. A prima facie examination of these factors is essential to ensure that the process of law is not misused, abused or misdirected. 12025 SCC OnLine Del 3016 2CRM-M-54032-2024 (O&M) 5 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 8. The petitioner is sought to be arraigned as an accused in the FIR in question, solely, on the basis of disclosure statement made by coaccused from whom there is recovery of contraband. As per the prosecution version, there is no other material available to connect the petitioner with the contraband in question. It is not in dispute that the petitioner was not present at the spot. The veracity and weightage required to be attached to the disclosure statement made by the co-accused will be fully tested at the time of trial. However, the same cannot be construed as sufficient by itself to decline the concession of anticipatory bail to the petitioner especially when the petitioner has joined the investigation in terms of the interim protection earlier afforded by this Court and has cooperated therein.” 9. A learned single judge of this Court in Kotte Nagendra @ K. Nagendra Kumar v. State of A.P.,3 another decision relied on by the learned Counsel for the Petitioner, at paragraph No.6, it is held as under: “6. It is not the case of the prosecution that the petitioner/A-2 has indulged in any of the activities under NDPS Act and also considering the fact that he was added as A-2 in the crime only basing on the confession statement of A-1, this Court prima facie is of the view that when the allegation does not attract Section 20(b)(ii)(C) of the NDPS Act, considering the bar under Section 37 of the NDPS Act does not arise. Therefore, this is a fit case for granting anticipatory bail.” 10. Another learned single judge of this Court in Kadvakudur Venkata Ganesh babu v. State of A.P., another decision relied on by the learned Counsel for the Petitioner, at paragraph No.4, it is held as under: “4. The petitioner herein is said to be a 19 years old boy and pursuing B.B.A., in K.L. University. Though the offence alleged against the petitioner is under NDPS Act, since the petitioner is a student with no criminal antecedents and considering the quantity seized, this court is inclined to consider the request of the petitioner to grant anticipatory Bail on certain conditions.” 11. However, the Hon’ble Apex Court in Dinesh Chander v. State of Haryana 4, it is held that in general Anticipatory Bail is not maintainable against the accused, who is involved in NDPS cases. 3 Crl.P.No.3204 of 2020 dated 31.08.2020 4Special Leave to Appeal (Criminal) No.9540 of 2025, dated 07.07.2025. 6 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 12. Further, the Hon’ble Apex Court in Satpal Singh v. State of Punjab5, in another decision relied on by the learned Counsel for the Petitioner, at paragraph Nos.14 & 15, it is held as under: 14. Be that as it may, the order dated 21-9-2017 [Beant Singh v. State of Punjab, 2017 SCC OnLine P&H 3801] passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21-9-2017 [Beant Singh v. State of Punjab, 2017 SCC OnLine P&H 3801] is only to be set aside and we do so. 15. Consequently, the order dated 31-10-2017 passed by the Sessions Court is also set aside. All the three accused in both these appeals are directed to surrender before the trial court. However, we make it clear that they are free to apply for regular bail, in which case, the Sessions Court will consider the matter on the merits of the application. Before parting with the judgment, we also painfully note that even in the inquiry conducted pursuant to the orders passed by this Court, there was no reference to the regular bail granted to Beant Singh and Gurwinder Singh and that too, on production of an interim order passed by the High Court. Had the same been noticed, the State would have certainly taken steps much earlier. This is once again to remind the police and the prosecutor that they need to show due diligence and vigilance while dealing with the cases under the NDPS Act.” 13. The Hon’ble Apex Court in Kulwant Singh v. State of Punjab6 held that when a contention was raised that Tapentadol Hydrochloride tablet is not included in the list of psychotropic substance specified in the schedule, appended to ‘the NDPS Act’, by considering the reported judgments of the High Courts in Mohd. Sulthan v. State7 and Novafor Samuel Inoamaobi v. State of Maharastra 8 the Hon’ble Apex Court held that Tapentadol Hydrochloride tablet is not a psychotropic substance, included in the schedule of ‘the NDPS Act’ and inclined to grant pre-arrest bail to the Petitioner therein. 5(2018) 13 SCC 813 62025 LiveLaw (SC) 387 72024 SCC OnLine Mad 445 82022 SCC OnLine Bom 1631 7 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 14. With regard to the commercial quantity, this Court would be constrained to observe that the statutory framework under Section 37 of ‘the NDPS Act’ imposes a rigorous threshold for the grant of bail, which is applicable with equal force to anticipatory bail; the twin conditions laid down therein, that the Court must be satisfied that the accused is not guilty of the offence and is not likely to commit any offense while on bail, are not merely procedural but substantive safeguards against the menace of drug trafficking. 15. The High Court of Rajasthan in Prabhulal & Anr. v. State of Rajasthan9, at paragraph No.6 it is held as under: “6. On the other hand, Mr. V.S. Gujar and Mr. Suresh Pareek have vehemently contended that in view of stringent provisions of Section 37 (1) of the N.D.P.S. Act, petitioners are not entitled to get bail even under Section 439, Cr. P.C. and there is hardly any ground to grant them anticipatory bail in such cases. Learned counsel further contended that petitioners are avoiding their arrest and there is sufficient material to establish their involvement in the crime. It was also contended that the bail application under Section 439, Cr. P.C. of co-accused Ram Kumar to whom the contraband articles were to be delivered, as well as the application of co-accused Bharat Singh were rejected by this Court on 15.12.94 and 15.7.94, respectively.In 1994 (3) W.L.C. ([Raj.) 622, while considering the scope of anticipatory bail in a case registered under the N.D.P.S. Act, it was observed by me, as under:- "The object and reason behind passing the amendments was to make stringent provisions of bail as it was thought that such powers should not be used to defeat the object of the Act and a technical plea should not be a ground for under -serving liberty under the Act. The non-obstante clause in Section 37 (1) of the /Act makes is clear that the accused of an offence under the Act is to be severally dealt with and that he should not be allowed to be released on bail unless the conditions contained in Section 37 are satisfied. Though the Act specifically does not prohibit the grant of anticipatory bail under Section 438, Cr. P.C., but the legislative intent can be gathered from Section 37 of the Act which restricts the bail even after the arrest of the offender. The Narcotic Drug and Psychotropic Substances Act, 1985 is a special enactment and was enacted with a view to making stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances. The under lying object of the Act and the stringent provisions of bail introduced by Act No. 2 of 1989 make it clear that anticipatory bail should not be granted in such cases unless the Court is satisfied that the investigating agency was abusing the provisions of the Act with malafide object to arrest any person. In such cases, the law should be allowed to have its own course." Section 25 of the Act provides punishment to the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance to 91995 Supreme(Raj) 935 8 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 be used for the commission by any other person of an offence punishable under any provision of this Act.” 16. The grant of anticipatory bail at the pre-investigation stage in cases under ‘the NDPS Act’ is a matter that requires extreme caution, as emphasized by the Hon’ble Supreme Court. It is virtually impossible for any Court to arrive at a ultimate conclusion of innocence or guilt when material evidence is yet to be collected, and the investigation remains ongoing. The Hon’ble Apex Court has consistently underscored the importance of adhering to the legislative intent behind Section 37 of ‘the NDPS Act’, in regard to commercial quantity, which prescribes stringent conditions for bail in drug- related offences. While rare, fact-specific exceptions where anticipatory bail has been granted do exist; however, these are isolated instances and do not set a precedent for broader application. Such decisions are to be viewed as exceptional and should not dilute the legislative purpose of preventing misuse of bail provisions in serious drug offences. No document is filed or contention is raised that ‘the NDPS Act.,’ was invoked against the petitioner with malafide object to arrest him and the investigation agency abuse the provisions of ‘the NDPS Act’. 17. Therefore, cautious stance is justified by the need to balance individual liberty with societal interests, particularly given the grave harm caused by narcotics crimes. The risk of abuse and the societal impact of drug offences warrant a restrictive approach to anticipatory bail at this stage of investigation. While recognizing that exceptions may arise in unique circumstances, it 9 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 remains imperative that such applications be scrutinized meticulously, ensuring that the fundamental legislative intent and judicial principles are upheld. Consequently, anticipatory bail in cases under ‘the NDPS Act’ should not be granted lightly. 18. In this connection, it is relevant to refer the decision of the Hon’ble Apex Court in State of Kerala v. Rajesh10 at para Nos.18, 19, 20 and 21 held as under: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) „24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.‟ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, 10(2020)12 SCC 122 10 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely over looked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.” CONCLUSION: 19. In view of the law laid down by the Hon’ble Apex Court in the above decisions, the request of the Petitioner cannot be considered at this juncture inasmuch as there are reasonable grounds to believe that the Petitioner had not indulged in the commission of the alleged offence. There are no circumstances from that date to the date of filing of this application. 11 Dr.YLR,J CRL.P.No.5541/2025 Dated:11.09.2025 20. Accordingly, the Criminal Petition is dismissed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 11.09.2025 KAS