APHC010460772025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 9243/2025 Between: MD ZAHID, S/O. MUZHAR, A/19 YEARS, C/ MUSLI, E-1821, JJ COLONY, BHAVANA POST AND DISTRICT, NORTH WEST DELHI ...PETITIONER/ACCUSED AND THE STATE OF ANDHRA PRADESH, Rep by Special Public Prosecutor at Rajamahendravaram through SHO, Gurthedu P.S, ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1. DUGGIRALA SUBASH Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR The Court made the following: 2 ORDER: The Criminal Petition has been filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity „the BNSS‟), seeking to enlarge the petitioner/Accused No.5 on bail in Crime No.4 of 2025 of Gurthedu Police Station, registered against the petitioner/Accused No.5 herein for the offence punishable under Section 8 (c) r/w 20(b)(ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity „the NDPS Act‟). CASE OF THE PROSECUTION: 2. The case of the prosecution is that on 24.052025 at 1.00 PM the SI of police, Gurthedu along with his staff and mediators rushed to scene of offence i.e. outskirts of Yedlakonda Village, Gurthedu Panchayat, Y.Ramavaram Mandal and apprehended Accused Nos.4 to 6 whey they were transporting 150 Kgs of ganja in Tata Indica Vista Car bearing No.AP 39 FD 0273 and seized the said contraband from their possession under the cover of a mediators‟ report and registered a case in the aforementioned crime. The accused were remanded to judicial custody. CONTENTIONS OF THE COUNSEL FOR THE PETITIONER: 3. Sri Duggirala Subhash, learned Counsel for the Petitioner submits 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 19 years old. The petitioner is permanent resident of North West Delhi and he undertakes to strictly adhere to any conditions that may be imposed by this Court. 3 The learned counsel for the petitioner further argued that the petitioner is aged about 19 years. He is a worker in a dockyard for loading and unloading and he has no knowledge about transportation of ganja in his vehicle. He was taken as an opting driver from Delhi. He was asked to drive in Andhra Pradesh. He was arrested on 24.05.2025. He is in jail for the past 111 days. In the light of the foregoing, learned counsel prays that the present petition be allowed in the interest of justice. ARGUMENTS OF THE STATE: 4. Per contra, Ms.Akhila Naidu, learned Assistant Public Prosecutor, vehemently opposes for granting of bail to the petitioner. She submits that commercial quantity i.e. 150 Kgs of ganja was involved in this case. She further submits that the petitioner being an opting driver from the bail is expected to know what was being transported in his vehicle. He simply pleads ignorance. POINT FOR CONSIDERATION: 5. 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 bail?” ANALYSIS: 6. As seen from the record, the allegation against the petitioner/A-5 is that, he had indulged in dealing with 150 Kgs of ganja in a vehicle. It is a commercial quantity. The petitioner was arrested on 25.05.2025. He has been 4 in the judicial custody for the past 111 days only. The petitioner being an opting driver from the Delhi is expected to know what was being transported in his vehicle as submitted by learned Assistant Public Prosecutor. The investigation is at a nascent stage. Some more witnesses are to be examined. This Court also not satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail. 7. In this connection, it is relevant to refer the decision of the Hon‟ble Apex Court in State of Kerala v. Rajesh 1at 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 1(2020)12 SCC 122 5 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 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.” 8. In Noor Aga v. State of Punjab 2 the Hon‟ble Apex Court, at Para Nos.58 to 60 held as under: “58. Sections 35 and 54 of the Act, no doubt, raise presumptions with a regard to the culpable mental state on the part of the accused a salso place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. 2 (2008) 16 Supreme Court Cases 417 6 Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. 60. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of the doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself...” CONCLUSION: 9. Whether the petitioner entertained a mental culpable state while committing the offence cannot be considered at this juncture, it is a matter for trial. The issue, whether the petitioner got knowledge that he was transporting ganja, at this juncture, cannot be appreciated. There are no merits in the present bail petition. 10. In the result, the Criminal Petition is dismissed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 15.09.2025 KA 7 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 9243/2025 Date: 15.09.2025 KA