ta IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATL- THURSDAY, THE TWENTY SEVENTH DAY OF MAY, TWO THOUSAND AND TWeney | | : PRESENT : aN THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI ° CRL.P.No. 3010 of 2021 Between:- -- 1.Gompa Durga Prasad, S/o. Chellayya, R/o. Golugondapeta Village, Natavaram Mandal, Visakhapatnam District. 2.Devada:Rajesh Varma, S/o. Late Appalanaidu,. R/o. Mallubhupalapatnam Village, Natavaram Mandal, Visakhapatnam District. seeee Petitioners/Accused Nos.4 & 5. AND The State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of Andhra Pradesh bees Respondent. Petition filed under Sections 437 & 439 of Cr.P.C. praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to enlarge the petitioners No.1 and 2 /Accused Nos.4 and 5 on bail in connection with Crime No.341 of 2020 on the file of the S. Kota Police Station, Vizianagaram District. The petition coming on for hearing, upon perusing the memorandum of grounds filed in support thereof and upon hearing the arguments of Sri M.V. Subba Reddy, Advocate for the Petitioners and of the Addl. Public on Prosecutor on behalf of respondent/State, the Court made the following ORDER :- HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No.3010 of 2021 ORDER:
This Criminal Petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking regular bail to the petitioners/A4 and A5 in connection with Crime No.341 of: 2020 of S.Kota Police Station, Vizianagaram District, registered for the offences punishable under Section 8 (c) read with Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act").
2. The case of prosecution is that the petitioners/A4 and A5 and A7 were arrested on 13.11.2020, while they were transferring 1500 kgs. of ganja from Eicher vehicle bearing registration No.AP 39 TH 7178 to lorry bearing registration No.RJ 11 GR 6163 along with other accused. It is also alleged that A1 to A5 transported 1500 kgs. of ganja in 50 gunny bags of 30 kgs. each in Eicher Vehicle from Munchangiputtuga Village in Araku Mandal to Mushidipalli Junction on the road leading from Boddavara to Vizianagram for the purpose of transferring it into lorry bearing registration No.RJ 11 GR 6163, in which A6 and A7 were present. It is also alleged that A4 took the Eicher vehicle on lease and that the petitioner No.2/A5 is the driver of the said Eicher vehicle. Basing on the same, the present crime is registered. The petitioners were arrested on 13.11.2020 and remanded to judicial custody.
3. Heard learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-State.
2 4if 4, Learned counsel for the petitioners/Accused submits that the petitioners have not committed any offence much less the alleged offences and the petitioners have nothing to do with the' alleged seizure of contraband from their possession. He submits 'that the ti petitioners were arrested on 13.11.2020 and they have been languishing in jail since then. He submits that as per Section 36A (4) of the NDPS Act, the police have to file the charge sheet within 180 days. In this case, the police neither filed any application seeking extension of time nor filed charge sheet. As such, the petitioners are entitled for statutory bail.
'5. Learned Additional Public Prosecutor does not dispute the fact
-that the police failed to file charge sheet within 180 days nor made any application seeking. extension of time. However, he submits that "huge quantity of 1500 Kgs of ganja has been sefied from the
-possession of the petitioners. He submits that the investigation is still i pending. Hence, the petitioners are not entitled for grant of bail.
6. Section 36A of the NDPS Act reads thus:
| "36A. Offences triable by Special Courts: (i) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
: \
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special
- Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under subsection (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may ° authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court where such Magistrate considers
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;
(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause
(b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36.
(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27 A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":
4Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. .
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily."
ve Section 167 (2) of Cr.P.C reads thus:
la "(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he: has 'no " jurisdiction to try the.case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) ' the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but. no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,- --_
(i) ninety days, where the investigation relates to:.an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; 1
(ii) sixty days, where the investigation relates to, any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXxXIlI for the purposes of that Chapter;]
(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. ' Explanation |.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail; ]. 2 Explanation Il.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph
(b), the production of the accused person may be proved by his signature on the order authorizing detention."
7. The Hon'ble Apex Court in the case of Uday Mohanlal Acharya v.State of Maharashtra' has observed that personal liberty is one of cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody up to a maximum period as indicated in the proviso to sub Section (2) of Section 167 of Cr.P.C, any further detention beyond the period without filing of a challan by 'the investigating agency would be a subterfuge and would not be in accordance with law and inconformity with the provisions of the Criminal Procedure Code, and as such, it could be violative of Article 21 of the Constitution of India and the Hon'ble Apex Court in recent judgment in S.Kasi v. State? wherein it was observed that the indefeasible right to default bail under Section 167 (2) Cr.P.C. is an integral part of the right to personal liberty under Article 21 of the Constitution, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was ' (2001)5 SCC 453 7 2020 SCC OnLine SC 529 6 emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet. Additionally, it is well settled that in case of any' ambiguity in the construction of a penal statute, the' Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedure providing for the curtailment of the liberty of the accused.
8. In view of the foregoing reasons, as the charge sheet is not filed within the statutory period of 180 days as contemplated under Section 36A (4) of the NDPS Act, the petitioner is entitled for statutory bail, which is an indefeasible right of the accused as laid _ down by the Hon'ble Apex Court in catena of cases.
9. Accordingly, this Criminal Petition is allowed. The petitioners/Accused shail be enlarged on bail on their executing personal bond for Rs.10,00,000/- (Rupees Ten lakhs only) with two sureties each for a like sum each to the satisfaction of the Judicial Magistrate of First Class, $.Kota, Vizianagaram District. However, the petitioners/accused shall not leave the State and they shall appear before the Station House Officer, $.Kota Police Station, Vizianagaram District twice in a month on Thursday and Sunday between 10.00 A.M.
'and 1.00 P.M. till the trial is completed.
10. This Court observed that even in cases where huge quantity of contraband is seized, the police are not vigilant in conducting investigation and filing charge sheet within 180 days. They-are not cas even seeking extension of time for filing charge sheet, as such, this Court in several cases granting bail to the accused as they are entitled for default bail. In these type of grave offences, the police are not expected to act in such a negligent manner. The Director General of Police shall take appropriate steps and issue guidelines to the Investigating Officer, wherever it is found that the police failed to seek extension of time for filing the charge sheet and any other lapses appropriate action shall be initiated.
The Registry is directed to communicate a copy of the order to the Director General of Police, Andhra Pradesh.
neg nett SD/- B.PRASAD RAO ASSISTANT REGISTRAR // TRUE COPY// 2 | SECTION OFFICER To PN rere EN PENN
1.The Special Judge for Trial of Cases under NDPS A iti SAfenad A i . Iu - - a LUE? ita, b Ron ; oessions Judge, Vizianagaram. ctcum| Additional bss.) ' se . The Judicial Magistrate of First Class, S$. Kota, Vizi istri .
- 2 , Vizianagaram District. «~~
3.The Director General of Police, Mangalagiri, Guntur District. -- °
4.The Station House Officer, S. Kota Police Station, Vizianagaram District..~~
3.The Superintendent, Central Jail, Adavivaram, Visakhapanam. 9 ~~~
6.Two CCs to the Public Prosecutor, High Court of A.P., at Amaravati(OUT)
7.One CC to Sri M.V. Subba Reddy, Advocate(OPUC)
8.One spare copy.
TKK ae HIGH COURT LK.J DT.27-05-2021.
BAIL ORDER CRL.P.No. 3010 of 2021 RELEASE THE PETITIONERS ON BAIL