Dismissed¶123

Bommisetty Hari Kiran v. the State of Andhra Pradesh

Andhra Pradesh HC28 Aug 2025CRLP/8351/2025

Case brief

AI extract

What is this about?

Pre-arrest/anticipatory bail refused; NDPS Act Sections 8(c) read with 20(b); Section 37 NDPS rigors and twin conditions; Section 482 BNSS; Section 528 BNSS interim bail plea; ganja sale in small packets, Kadapa/Chinnachowk PS; investigation at nascent stage; parity denied as co-accused got only regular bail; co-accused confession admissibility deferred to trial court; Sections 25 and 27 Indian Evidence Act 1872; no recovery from petitioner; no adverse antecedents.

What did the court decide?

Adherence to the legislative intent behind Section 37 of the NDPS Act is essential; in regard to commercial quantity it prescribes stringent conditions for bail in drug-related offences, which apply with equal force to anticipatory bail. ¶109

Bommisetty Hari Kiran Vs the State of Andhra Pradesh — Narcotics (NDPS) | Andhra Pradesh HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶123

Issue for consideration

Whether the Petitioner/Accused No.4 is entitled to grant of pre-arrest bail in connection with Crime No.286 of 2024 of Chinnachowk U/G Police Station, Kadapa District, registered under Sections 8(c) read with 20(b) of the NDPS Act.

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Court's answer

¶109

Ratio / Principle

Anticipatory bail in cases under the NDPS Act should not be granted lightly; granting it at the pre-investigation stage requires extreme caution, and rare fact-specific grants are isolated instances that do not set a broader precedent.

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Key takeaways

Although no adverse antecedents were reported against the Petitioner/Accused No.4 and nothing was seized from his possession, he is disentitled to pre-arrest bail because his role requires further ascertainment by the investigating officer through collection of more incriminating material; the investigation remains at a nascent stage even after one year.ratio¶118
The principle of parity cannot be invoked because co-accused Nos. 1, 2 and 5 were granted only regular bail (not pre-arrest bail), whereas the Petitioner seeks anticipatory bail.ratio¶115
Whether a confession given by a co-accused against other accused is relevant is a matter for determination by the Trial Court during trial; it cannot be decided while determining a pre-arrest bail application.

Detailed headnote1 paragraphs

Criminal Petition (Section 482 BNSS) by Accused No.4 seeking pre-arrest bail in Crime No.286 of 2024, Chinnachowk U/G PS, Kadapa, registered under Sections 8(c) read with 20(b) NDPS Act for alleged ganja sale in ~10 gram packets at Rs.500 each. Dr Justice Y. Lakshmana Rao dismissed the petition. Although nothing was seized from the petitioner and no adverse antecedents were reported, bail was refused: his precise role awaited further ascertainment, the investigation remained nascent after one year, the Section 37 NDPS framework was emphasised as imposing stringent conditions not to be bypassed, parity failed because co-accused Nos. 1, 2 and 5 had obtained only regular bail (not pre-arrest bail), and the relevance of the co-accused's confession was left to the trial court (Section 25 IEA renders it inadmissible, Section 27 may render a discovery relevant). Decisions relied on by the petitioner were held to involve facts altogether different.

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APHC010413972025

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY. THE TWENTY NINETH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL PETITION NO: 8351 OF

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Between:

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Bommisetty Hari Kiran, (Mentioned as Hari Kiran in the FIR), Age 26 Years C/o. Bommisetty Penchalaiah, R/o.4/28, Siddulapalli, Tallapaka, Rajampeta Mandai, Mannur, Annamayya District - 516126.

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...PETITIONER/ACCUSED N0.4

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AND

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The State of Andhra Pradesh. Represented by the State Public Prosecutor High Court of Andhra Pradesh, Amaravati, Through Station House Officer Chinnachowk U/G PS. Kadapa District.

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...respondent/complainant

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Petition under Section 482 of BNSS praying that in the circumstances stated ,n the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to direct the Petitioner/Accused. No.4 be released on bail in connection with the FIR.No.286 OF 2024, Chinnachowk U/G PS Kadapa District, dated 02.08.2024.

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lA NO: 1 OF 2025

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Petition under Section 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 pending final adjudication of the criminal petition, It is just and necessary that the Petitioner/Accused.No.4 be released on interim-bail in the event of arrest in connection with the FIR.No.286 OF 2024, Chinnachowk U/G PS, Kadapa District dated 02.08.2024 AND/OR pass such other order or orders may deem fit and proper in the circumstances of the case.

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Counsel for the Petitioner : SRI DHEERA KANISHKA

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Counsel for the Respondent: PUBLIC PROSECUTOR

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The Court made the following ORDER :

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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CRIMINAL PETITION No.8351 of 2025

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Between:

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Bommisetty Hari Kiran The State Of Ap Rep By Its PP Hyd

AND

...ACCUSED

...RESPODENT

****

DATE OF ORDER PRONOUNCED 29.08.2025

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C--'

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SUBMITTED FOR APPRQVai •

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the honourable dr justice Y. LAKSHMANA RAO

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Whether Reporters of Local Newspapers may be allowed to see the Judgment?

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Yes/No

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Whether the copy of Judgment may be marked to Law Reporters/Journals?

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Yes/No

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Whether His Lordship wish to see the fair copy of the Judgment?

Yes/No

THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL PETITION No.8351 nf 709/;

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% 29.08.2025

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Between:

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Bommisetty Hari Kiran

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...ACCUSED

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AND

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The State Of Ap Rep By Its PP Hyd

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...RESPODENT

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! Counsel for the Petitioners ; Dheera Kanishka '"Counsel for the Respondent : Ms. P.Akila Naidu, Assistant Public Prosecutor < Gist:

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The Order of the Court was delivered by

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Dr. Justice Y.Lakshmana Rao :=— For the convenience of exposition,

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this order is divided into the following parts ;—

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A. CASE OF THE PROSECUTION

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B. CONTENTIONS OF THE COUNSEL FOR THE PETITIONER

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C. ARGUMENTS OF THE STATE

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D. POINT FOR CONSIDERATION

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E. ANALYSIS

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F. CONCLUSION

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Head Note:

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? Cases referred: 1) 2025 see Online Del 3016 2) eRM-M-54032-2024 (O&M) 3) erl.P.No.3204 of 2020 dated 31.08.2020 4) SPl.A (eriminal).No.9540 of 2025 dated 07.07.2025 5) (2018) 13 see 813 6) 2025 LiveLaw (Se) 387 7) 2024 see Online Mad 445 8) 2022 see Online Bom 1631 9) 1995 Supreme(Raj) 935 10) (1952) 1 see 275 11) (2018) 8 see 271

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 8351/2025

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ORDER:

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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.4 for granting of pre-arrest bail in connection with Crime No.286 of 2024 of Chinnachowk U/G Police Station, Kadapa District, registered for the alleged offences punishable under Sections 8(c) read with 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the NDPS Act’).

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CASE OF THE PROSECUTION:

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On 02.08.2024, acting upon credible information received from informants regarding the illegal sale of Ganja in the^{Chinnachowkarea} of Kadapa City, the Sub-Inspector of Police, Chinnachowk (U/G) Police Station, proceeded to the scene of offence along with a Gazetted Officer and two Revenue Officials. Upon arrival, the police apprehended one Saraka Narasimhulu (A-1), who was allegedly found in possession of approximately 2 kilograms of Ganja, concealed in a white plastic bag placed on a blue Honda Dio scooter bearing Registration No.AP39-RF-3400. The seizure was affected in the presence of panch witnesses, and the contraband was duly documented. During interrogation. Accused No.1 confessed that he, along with Venkata Sandeep Kumar (A-2), Harikrishna (A-3), Bommisetty Hari Kiran (A-4), and Chidananda Reddy @ Chitti (A-5), was engaged in the sale of

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Ganja in small packets to various individuals i in and around Kadapa Town, It was further alleged that the said contraband distributed among the accused persons for resalewas procured from Araku and on a commission basis. ^Q^g^NIlONS^F THE Cni IMgc, EQBJm PETITint^3Mr. Dheera Kanishka learned Counsel for the Petitioner, submits that the Petitioner has not committed any offence. He was falsely implicated in this case. He is ready and abide any conditions to be imposedi by this Court while granting pre-arrest bail. He is permanent resident of Siddulapalli Tallapaka, Rajampeta Mandal, Mannur, Annamayya District, thus he got fixed abode. Material portion of i investigation is completed. Case is of the year 2024. For the past one year the police have not chosen to arrest the Petitioner, and there is no considerable progress in the investigation. It i is nrged to grant orearrest bail to the Petitioner/Accused No.4. ^S^UMENTS of THF QT^TF4Per contra, Ms. P.Akila Naidu, the learned Assistant Public Prosecutor, opposed in granting of pre-arrest bail stating that i 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 whothe linchpin in the crime is. Investigation i 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 protection for the a dangerous offence against the society nor a shield or persons who have allegedly committed grave offence. as per

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the judgments of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab^ 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.

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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.

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POINT FOR CQNSIDERATinN-

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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:

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"Whether the Petitioner is entitled for grant of pre-arrest^ball?”

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ANALYSIS:

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The High Court of Delhi in Joy Mitra v. Narcotics Control Bureau\ a decision relied on by the learned Counsel for the Petitioner, at paragraph

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Nos.20 to 22, it is held as under:

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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 PLany direct recovery from the aoplicants and considering that the investigation is already complete, in the opinion of this Court, no purpose would be served hv subiectinq 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 CdSQ. ♦

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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 aoDlicants with the recovery of thn commercial quantity of contrabands, the rigors of Section 37 of the NDPfi 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 expeditiousl.y No purpose will be served by subiectinq the applicants to suffer the threat of imoendina arrest, only for them tn hp granted requiar bail at a later stage on the arnnnd of delay.”

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'2025 see Online Del 3016

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The High Court of Punjab & Haryana in Ashu v. State of Punjab^, a decision relied on by the learned Counsel for the Petitioner, at paragraph

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Nos.7.3 & 8, it is held as under:

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'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 coilected thus far. The process of investigation is dynamic, and evidence may evolve or be corroborated, as the investigation progresses. Howeve,r 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. Howeve,r 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 prime facie examination of these factors is essential to ensure that the process of law is not misused, abused or misdirected. The petitioner is sought to be arraigned as an accused in the FIR in question, solely, on the basis of disclosure statement made bv 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 i/i/as 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. Howeve,r 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. ”

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A learned single judge of this Court in Kotte Nagendra @ K. Nagendra

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Kumar v. State of A.P.,^ another decision relied on by the learned Counsel for

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the Petitioner, at paragraph No.6, it is held as under:

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"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^thefactthat he was added as A-2 in the crime only basing on the confession statement of A-1, this Court prime 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

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Crl.P.No.3204 of 2020 dated 31.08.2020

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2CRM-M-54032-2024 (O&M)

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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:

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“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 guantity seized, this court is inclined to consider the request of the petitioner to grant anticipatory Bail on certain conditions. ”

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However, the Hon’ble Apex Court in Dinesh Chander v. State of Haryana^, it is held that in general Antici’patory Bail is not maintainable against the accused, who is involved in NDPS cases.

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Further, the Hon’ble Apex Court in Satpal Singh v. State of Punjab^ in another decision relied on by the learned Counsel for the Petitioner, at paragraph Nos.14 & 15, it is held as under:

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Be that as it may, the order dated 21-9-2017 fBeant Sinah v. State of Punjab, 2017 see 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 fBeant Sinah v. State of Punjab. 2017 SCC OnLine P&H 38011 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 plication. Before parting with the judgment, we also painfully note that even in the inquiry conducted pursuant to the orders passed by this Court, there ivas 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."

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'•Special Leave to Appeal {Criminal) No.9540 of 2025,^d^d 07.07.2025 ^(2018) 13 see 813

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T \

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The Hon'ble Apex Court in Ku/want Singh when a contention V. State of Punjab^held that '^as raised that Tapentadol Hydrochloride included i tablet is not in the list of psychotropic- substance speciifed i appended to ‘the NDPS ‘c the schedule, Act’, by considering the High Courts 'ni Mohd.- Su/than reported judgments of the V. Stated and Novafor State of IWaharasht Samuel Inoamaobi v. ra®, it was held that Tapentadol Hydrochloride a psychotropic substance, includedi i tablet is not 'n the schedule of ‘ inclined to grant the NDPS Act and pre-arrest bail to the Petitioner therein.

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With to observe thatregardtheto the commercial quantity, this Court would be constrained statutory framework under Section 37 imposes a ri of ‘the NDPS Act’ rigorous threshold for the grant of bail which is ogual force to applicable with antic/patory bail; the twin conditions laid do Court must be herein, that the satisfied that the accused is not guilty of the likely to offence and is not commit any offense While on bail. are not merely procedural but substantive safeguards against the menace of drug trafficking the instant case the seized contraband ■ Of course, in was not a commercial 15. The High Court quantity. of Rajasthan i 'n Prabhu/al & Ann Rajasthan^, at V. State of paragraph No.6 it is held as under:

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IharpiSUon^ RcZad^^rTis

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^2025 LiveLaw (SC) 387' •2022lccS"r'’°'^"'''“= ^1995 Sj, °riL^ne Bom 1631 1995 Supreme(Raj) 935

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M/as a/so contended that

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of co-accused Ram Kumar to whom B^rTSah Tw 1° louvered, as well as the applicatiori^ofco-accused ® oonsidering the scope of anticipatory bail in a case registered under the N.D.RS. Act, it was observed by me. asunderThe object and reason behind passing the amendments was to make strinqent oNectotThe Ac anf ^^ould not be used to defeat the undnr technical plea should not be a ground for under -serving liberty ^ non-obstante clause in Section 37 (1) of the /Act makes is clear should m^bT ?/ to be severally dealt with and that^he in Section 37 arJ f h tI conditions contained % anf rZZ .f^^isfied Though the Act specifically does^{notprohibitthe} grant °t^ticipatory bail under Section 438, Cr. RC.. but the legislative intent can be onendlr. of the The Narcotic Drug and Rsychotropic Substances Act, 1985 is a special enactment reLl^hL%^nnS ^ stringent provisions for the control^and ,fnH operation relating to narcotic drugs and psychotropic substances The f ? sfAVnqeA?f provisions of bail intrndunnri by Act No 2_gf 1989 make it clear that anticipatory ba.l should not be granted In such casern f irivestiqatinq agency was abusing thef^??^Ui.^ gt the Act with malafide obiect to arrest any person. In such cases, the law should he allowed to have its own course " c^ntlnlnr^^lnf^ ^cf prowc/es punishment to the owner^{oroccupierorhavingthe} he ZZnr fn space, place, animal or conveyance to proJs^^^^ ^ a^y of/7e/-persoa of an offence punishable^underany

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1u. The 'jiani oi anticipaiory Daii at the jjre-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 drugrelated 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

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is raised that ‘the NDPS Act.,’ was invoked against the petitioner with malafide object to arrest him and the i investigation agency abuse the provisions of ‘the NDPS Act’.

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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 i intent and judicial principles are upheld. Consequently, anticipatory bail in cases under ‘the NDPS Act’ should not be granted lightly. 18. Albeit there are no adverse antecedents reported against the Petitioner/Accused No.4, and nothing was seized from the possession of the Petitioner, the Petitioner is disentitled for grant of pre-arrest bail because his role in the instant case is required to be further ascertained by the investigating officer by collecting some more incriminating material. The investigation is still at nascent stage even after completion of one year of its registration. According to the learned Assistant - nt Public Prosecutor, some more witnesses have to be examined and some more information is yet to be collected and some more accused have to be apprehended.

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Undoubtedly, the confession aiv given to a police officer is inadmissible as per Section 25 of the Indian Evidence Act 1872 and if cannot be a sole basis

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for arrest of accused as per the judgments of the Hon’ble Apex Court in Kashmira Singh v. State of M.P., 10 and Surinder Kumar Khanna v. Directorate of Revenue Intelligence 11 the decisions relied on by the learned counsel for the petitioner, but if such confession leads to a discovery of fact, it is relevant under Section 27 of the Indian Evidence Act, 1872. 20. Whereas, Accused Nos. 1,2, and 5 have only been granted regular bail. They were not even granted pre-arrest bail. However, the Petitioner herein, arrayed as Accused No. 4, seeks anticipatory bail. Thus, the principle of parity cannot be invoked in the present case. The Petitioner is aged 26 years and is arraigned in the case for the alleged offence of indulging in non-commercial quantity, punishable under ‘the NDPS Act’, carrying^{amaximumsentenceof} te { i years' rigorous imprisonment and a fine of Rs.1,00,000,/-. .Accuseo fMO. 2A/enkata Sandeep Kumar, procured contraband (Ganja) from Araku and kept in the room of Petitioner/Accused No.4. It is further alleged that Accused No. 2 instructed the Petitioner, along with Harikrishna and one Chindananda Reddy @ Chitt, to sell one kilogram of Ganja in Kadapa town to unidentified individuals. Additionally, it is alleged that the Petitioner, in active connivance with other accused persons, was involved in the sale of Ganja in smaller quantities approximately 10 grams per packet, priced at Rs.500/each, pursuant to the directions of Accused No. 2 for which Accused No.2 gave certain amount towards commission for selling of Ganja in loose packets. The precise role of the Petitioner in the commission of the alleged offence is yet to

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10'(1952) 1 see 275 (2018) 8 see 271

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be conclusively established, and it is subject to further investigation. Given the gravity of the offence and the stringent provisions of ‘the NDPS Act’, the grant of anticipatory bail at this stage is not found convincing^{andreasonable.}

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The decisions relied on by the learned Counsel for the Petitioner and the instant case facts and circumstances are altogether different. When the ingredients of any of the provincial provisions of ‘the NDPS Act’ are not attracted, this Court can grant pre-arrest bail to the Petitioner. Whether the alleged confession given by a co-accused against other accused is relevant or not is a matter of consideration before the learned Trial Court during the trial. Such confession is void or so cannot be decided while determining the case for grant of pre-arrest bail.

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CONCLUSION:

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