APHC010349742025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] MONDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 7264/2025 Between: 1.CHEVVAKULA CHINNAMMALU, W/O SATTIBABU (LATE), 40 YEARS, OCCUPATION FISH SELLER, R/O BENNA BHUPALAPATNAM VILLAGE ROLUGUNTA MANDAL, R/O DIBBAPALEM VILLAGE, ROLUGUNTA MANDAL, ANAKAPALLI DISTRICT. ...PETITIONER/ACCUSED AND 1.THE STATE OF ANDHRA PRADESH, (Rolugunta Police Station) Rep. by the Public Prosecutor High Court of Andhra Pradesh Amaravati, Guntur District. ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1.ARRABOLU SAI NAVEEN Counsel for the Respondent/complainant: 1.PUBLIC PROSECUTOR 2 The Court made the following: ORDER: The Criminal Petition has been filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) by the petitioner/Accused No.1 for granting of bail in connection with Crime No.30 of 2025 of Rolugunta Police Station, Anakapalli District, registered for the alleged offences punishable under Section 20(b)(ii)(C), 25 r/w 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the NDPS Act’). 2. The case of the prosecution is that on 21.04.2025 at around 10:00 hours, based on credible information regarding ganja transportation, the SI of Police, Rolugunta, along with staff and two mediators, conducted vehicle checking near Kanchugummala Village Junction, Rolugunta Mandal. During the check, four individuals arrived on two bikes carrying white PVC bags. Upon noticing the police, they attempted to flee but were apprehended. On interrogation before the mediators, the accused Nos.1 to 4 were identified. Accused No.1 confessed to purchasing 26 KGs of ganja from Accused No.2 and enlisted Accused Nos.3 and 4 to help transport it, offering them 1 KG each for personal use. Police seized 26 KGs of ganja valued at Rs.1,30,000, two motorcycles, and four mobile phones from the accused under cover of a mediators' report. The case was reported the same day at 12:30 hours. Since then, the petitioner/accused No.1 has been in judicial custody. 3. Sri. Aprabolu Sai Naveen, the learned counsel for the petitioner contends that the petitioner is innocent of the alleged offence and has been falsely implicated by the police. It is further submitted that the petitioner is the 3 sole earning member of the family and, he is ready to abide any conditions that may be imposed by this Court, and it is urged to grant bail to the petitioner. 4. Per contra, Ms.P.Akhila Naidu, the learned Assistant Public Prosecutor vehemently opposed the grant of bail to the petitioner, submitting that the investigation is still underway and several material witnesses remain to be examined. It is contended that if the petitioner is released on bail, there is a strong likelihood that he may abscond, thereby hampering the ongoing investigation and evading the process of law. In view of the foregoing, it is urged that the petition be dismissed. 5. Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor. Perused the record. 6. As seen from the record, the petitioner/accused No.1 procured the contraband about 26 KGS of Ganja from accused No.3. The petitioner acted as a mediator. Accused Nos.3 and 4 were the ultimate receivers. Indent was ordered, 26 KGs of Ganja was weighed. Section 29 of the NDPS Act would squarely applicable to the case at hand. on perusal of the entire record, accused Nos.3 and 4 are the customers of the accused No.1. Of course, there is no reference about inclusion of Section 29 of the NDPS Act at Column No.1 of the FIR. Whether the petitioner entertained a culpable mental state is a matter of trial. The presumption arising from the possession of illicit articles under Section 54 of the NDPS Act is also an issue to be considered during the trial. Moreover, the inventory in this case has already been prepared. 7. The petitioner was arrested on 21.04.2025 and ever since they have been in judicial custody. Learned counsel further relied on a decision of this Court in Shafik Khan v. State of Andhra Pradesh1 at Para No.6, the seized ganja was apportioned in between the accused and the petitioners were 1 Crl.P.No.4326 of 2019 dated 27.08.2019 4 enlarged on bail as they were not allegedly carrying commercial quantity of contraband. 8. Learned Assistant Public Prosecutor contends that the petitioner was spot arrested and they were carrying 26 Kgs of ganja. The rigor of Section 29 of ‘the NDPS Act.,’ is squarely applicable to the petitioner. The judgment relied upon by the petitioner in Shafik Khan’s case (supra) may not be applicable to the instant case, as the facts and circumstances are entirely different. Learned Assistant Public Prosecutor further contends that several witnesses are to be examined, co-accused are to be apprehended and main source of the contraband is yet to unearthed and urged to dismiss the bail application. 9. As seen from the record, the petitioner was allegedly found in possession of 26 Kgs of ganja respectively. The petitioner was arrested on the spot. 10. A learned Single Judge of this Court in Shafik Khan’s case supra observed that each accused therein, in order to have unlawful enrichment, individually purchased 4 Kgs of ganja for selling at higher price and hence apportionment of ganja was considered by not invoking Section 29 of ‘the NDPS Act’. 11. In Setty Vinaya Kumar v. State of Andhra Pradesh2, another learned Single Judge of this Court at Para No.4, apportioned the contraband and enlarged the petitioners on bail as the apportioned contraband was not above the commercial quantity. 12. Another learned Single Judge of this Court in Kanneboina Ramesh and another v. State of Andhra Pradesh3, at Para No.29, observed that the accused therein were in possession of 15 KGs of ganja after apportionment 2 Crl.P.No.6809 of 2024, dated 22.10.2024 3 2007 (2) ALD (Crl.) 233 (AP) 5 and enlarged them on bail saying that Section 37 of ‘the NDPS Act.,’ was not applicable in the light of the facts and circumstances of that case. 13. Another learned Single Judge of this Court in Bablu v. State of Andhra Pradesh4 at Para No.6, observed that the apportionment of 112 KGs of ganja was not possible at the juncture of considering the bail application, among five accused therein, and dismissed the bail application. 14. A learned Single Judge of High Court of Delhi in Vishwajeet Singh vs. State (NCT Of Delhi)5 at Para No.28 to 31 held as under: “28. It is the case of the prosecution that the two accused persons were found travelling together and were apprehended together on 02.12.2020. They were carrying bags from which 12 kg of Ganja each was recovered. Though individually the quantity recovered would be intermediate, the prosecution by analyzing the CDR details of the accused persons, alleges that as they were acting in conspiracy with each other, the quantity recovered from both of them have to be clubbed together making it a commercial quantity. 29. In Amarsingh Ramjibhai Barot (Supra), the Supreme Court held that merely because the accused persons were found together but were individually carrying the recovered substance, in the absence of any other evidence to suggest that there was any abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act, said provision cannot be invoked. The said case was, however, considering the order of conviction passed by the High Court. 30. In Nirmala (Supra) and Sagar Nana Borkar (Supra), unlike the present case, the prosecution had not alleged any other material/evidence against the accused but for them being travelling together with contraband. 31. A learned Single Judge of this Court in Awadhesh Yadav (Supra), after referring to the various precedents on the issue of clubbing together of the quantities of contraband recovered individually, observed as under: “49. From the provisions of law and the essence of case- laws, as discussed above, following principles can be culled out governing clubbing of the quantity of contraband recovered from two or more co-accused, at the stage of bail: 4 Crl.P.No.4406 of 2023 dated 11.07.2023 5 2024 SCC Online Delhi 1284 6 i. invocation of offence of abetment and/or conspiracy under Section 29 of the Act is must for clubbing of quantity. However, there cannot be a straight jacket formula for clubbing the quantity of contraband recovered from all the accused, merely on the basis of invocation of offence under Section 29 of the Act. It will depend on the factual backdrop of each case and the incriminating material available against the accused persons. ii. the incriminating material relied upon to invoke the offence of abetment and/or conspiracy under Section 29 of the Act, has to be cogent and convincing against each one of the accused charged with the offence of abetment and/or conspiracy. iii. in a case where joint recovery of contraband has been effected from two or more co-accused, the recovered contraband cannot be equally divided amongst the number of accused to determine whether the quantity of contraband recovered in “commercial quantity” or not. iv. where accused persons are travelling together in the same private vehicle individually carrying contraband, it will not be proper to consider the alleged recovery to be an individual recovery and the contraband recovered from all persons can be clubbed. v. if an accused is a habitual offender, it gives rise to an inference that he knows the tricks of the trade. In such a situation, previous involvement of the accused in the case(s)under the NDPS Act, is an additional factor which could be considered, besides other incriminating circumstances, for adding the quantities of contraband recovered from two or more co-accused.” 15. Indeed, although the quantity of ganja originally recovered from the petitioner was below the commercial quantity, the mediators’ report reveals an element of conspiracy involving in transportation of the contraband from an unknown individual to a specified destination. As per the mediators’ report dated 21.04.2025, the petitioner agreed to transport approximately 26 Kgs of ganja. 16. Section 29 of the NDPS Act says as under: “29. Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance 7 of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which— (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.” 17. On a fair reading of Section 29 of ‘the NDPS Act.,’ it is clear that whoever abets or is a party to a criminal conspiracy to commit an offence punishable under Chapter IV, irrespective of whether the offence is actually committed as a consequence of such abetment, shall be punishable with the imprisonment provided for the offence. Section 37 of ‘the NDPS Act.,’ stipulates that the offences under ‘the NDPS Act.,’are cognizable and non- bailable. 18. Section 37(1)(b)(ii) of ‘the NDPS Act.,’ emphasizes that where the Public Prosecutor opposes a bail application, the court may consider granting bail only if it is satisfied that there are reasonable grounds to believe that the petitioner is not guilty of the offence and that they are unlikely to commit any offence while on bail. The Learned Assistant Public Prosecutor vehemently argued that the petitioner was found in possession of a commercial quantity of ganja and were arrested on the spot. 19. Even though learned counsel for the petitioner submits that there was no reference indicating that the petitioner and the other accused shared a common intention to commit the alleged offence, a perusal of the entire material on record reveals that the petitioner, with the active aid, instigation, 8 and cooperation of the other accused, was involved in dealing with 26 kgs of Ganja. 20. For the foregoing reasons, this Court finds that the petition has no merit at this stage. 21. In the result, the Criminal Petition is dismissed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 18.08.2025 SNI 9 3 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION No.7264 of 2025 Date: 18.08.2025 SNI