APHC010395252025 IN THE HIGH COURT OF ANDHRA PRADESH THURSDAY,THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: Between: 1. MAMIDI BHARATH KUMAR(A5), AGE 32 YEARS S/O MAMIDI BHASKARACHARYULU, OCC PRACTISING ADVOCATE, DOOR NO 3-173/33, SARADANAGAR, 3RD LANE, BALIGHATTAM, NARSIPATNAM, VISAKHAPATNAM DISTRICT, ANDHRA PRADESH 531116 1. THE STATE OF ANDHRA PRADESH, REP. BY THE STATION HOUSE OFFICER, ARAKU POLICE STATION, ALLURI SEETHARAMA RAJU DISTRICT REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH AT AMARAVATI. 2. A THRINADH RAO, S/O NOT KNOW 1290, ARAKU VALLEY P.S., SEETHARAMA RAJU DISTRICT, ANDHRA PRADESH. Counsel for the Petitioner/accused: 1. JAGADISH KUAMAR BATCHU Counsel for the Respondent/complainant(S): 1. PUBLIC PROSECUTOR IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THURSDAY,THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 8079 OF 2025 MAMIDI BHARATH KUMAR(A5), AGE 32 YEARS S/O MAMIDI BHASKARACHARYULU, OCC PRACTISING ADVOCATE, DOOR NO 173/33, SARADANAGAR, 3RD LANE, BALIGHATTAM, NARSIPATNAM, VISAKHAPATNAM DISTRICT, ANDHRA PRADESH ...PETITIONER/ACCUSED AND THE STATE OF ANDHRA PRADESH, REP. BY THE STATION HOUSE OFFICER, ARAKU POLICE STATION, ALLURI SEETHARAMA RAJU DISTRICT REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH AT AMARAVATI. A THRINADH RAO, S/O NOT KNOW, OCC POLICE OFFICER, ASI 1290, ARAKU VALLEY P.S., SEETHARAMA RAJU DISTRICT, ANDHRA PRADESH. ...RESPONDENT/COMPLAINANT(S): Counsel for the Petitioner/accused: JAGADISH KUAMAR BATCHU Counsel for the Respondent/complainant(S): PUBLIC PROSECUTOR IN THE HIGH COURT OF ANDHRA PRADESH [3521] THURSDAY,THE ELEVENTH DAY OF SEPTEMBER THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO MAMIDI BHARATH KUMAR(A5), AGE 32 YEARS S/O MAMIDI BHASKARACHARYULU, OCC PRACTISING ADVOCATE, DOOR NO 173/33, SARADANAGAR, 3RD LANE, BALIGHATTAM, NARSIPATNAM, VISAKHAPATNAM DISTRICT, ANDHRA PRADESH - ...PETITIONER/ACCUSED THE STATE OF ANDHRA PRADESH, REP. BY THE STATION HOUSE OFFICER, ARAKU POLICE STATION, ALLURI SEETHARAMA RAJU DISTRICT REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF , OCC POLICE OFFICER, ASI 1290, ARAKU VALLEY P.S., SEETHARAMA RAJU DISTRICT, ...RESPONDENT/COMPLAINANT(S): 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.5 for granting of pre-arrest bail in connection with Crime No.34 of 2024 of Araku Valley Police Station, Alluri Seetharama Raju District, registered for the alleged offences punishable under Sections 20(b) (ii)(B) read with Section 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 03.04.2024, while conducting vehicle check near the RTC Complex, Araku Valley, the Police apprehended four individuals with possession of 3 Kgs of ganja. As per confession of Accused No.1, the above case was registered against the Petitioner herein. CONTENTIONS OF THE COUNSEL FOR THE PETITIONER: 3. Mr. Jagadish Kumar Batchu, learned Counsel for the Petitioner respectfully submits that the Petitioner has been falsely implicated in the present case and has not committed any offence as alleged. The Petitioner is the sole earning member of his family, and arrest would cause irreparable hardship to dependents. The Petitioner is willing to abide any condition that this Court may deem fit and proper for the grant of pre-arrest bail. 4. It is further submitted that the Petitioner is a practicing Advocate. Accused No.1’s father is client to the Petitioner. There were disputes between the father of Accused No.1 and the Petitioner. The Petitioner’s wife is pregnant and there is no recovery attributable to the Petitioner and custodial interrogation is not warranted in the facts and circumstances of the case. The Petitioner has cooperated with the investigation and there is no likelihood of him absconding or tampering with the prosecution evidence. Therefore, it is prayed that this Court may be pleased to grant pre-arrest bail to the Petitioner/Accused No. 5 in the interest of justice. ARGUMENTS OF THE STATE: 5. 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. 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. It is urged to dismiss the bail application. 6. 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: 7. 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?” ANALYSIS: 8. The Hon’ble Apex Court in Kulwant Singh v. State of Punjab1 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. State2 and Novafor Samuel Inoamaobi v. State of Maharashtra 3 , 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. 9. The High Court of Rajasthan in Prabhulal&Anr. v. State of Rajasthan4, at paragraph No.6 it is held as under: 12025 LiveLaw (SC) 387 22024 SCC OnLine Mad 445 32022 SCC OnLine Bom 1631 41995 Supreme(Raj) 935 “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 be used for the commission by any other person of an offence punishable under any provision of this Act.” 10. 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. 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. 11. 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 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. 12. 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’. 13. 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 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. 14. In this connection, it is relevant to refer the decision of the Hon’ble Apex Court in State of Kerala v. Rajesh5 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, (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 5(2020)12 SCC 122 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.” 15. The Petitioner is a practicing Advocate and he is aged about 32 years. The allegation against the Petitioner is that he had indulged in dealing with 3 Kgs of ganja along with other Accused. The role of the Petitioner has come out when Accused No.1 gave confession. The allegation against the Petitioner in precise is that he gave money to one Accused for purchase of ganja. The Crime is of the year 2024. The request of the Petitioner for grant of Pre-arrest bail cannot be considered in view of law laid down by the Hon’ble Apex Court. Hence, the Criminal Petition is liable to be dismissed. However, learned counsel for the Petitioner seeks permission of this Court for surrender of the Petitioner before the jurisdictional Magistrate and move appropriate application before the jurisdictional Court. CONCLUSION: 16. Considering the facts and circumstances of the case and in view of the fact that the Petitioner’s wife is carrying pregnancy, the Petitioner is granted liberty to surrender before the jurisdictional Magistrate within a week from this day and move appropriate application before the jurisdictional Court concerned for his enlargement on regular bail. Learned Jurisdictional Court is directed to dispose of such application on its own merits in accordance with law, within a period of two (02) days thereafter by giving due opportunity to the learned Public Prosecutor concerned. 17. Accordingly, the Criminal Petition is dismissed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 11.09.2025. KK THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 8079 OF 2025 11.09.2025 KK