Ambadas Sridhar Bankar vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3191 AP

     HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION No.1691, 1797, 3020, 3175, 3179 and
                            3229 of 2021

COMMON ORDER:


      Since the subject of matter of these criminal petitions, the

crime number and the relief are one and the same, this Court

deems it appropriate to dispose of these petitions by a common

order.


      These Criminal Petitions are filed under Sections 437 and

439 of Code of the Criminal Procedure, 1973 (for short „Cr.P.C.‟)

seeking regular bail to the petitioners/A5, A6, A4, A2, A1 and

A3 respectively in connection with Crime No.20 of 2021 of

Dharmajigudem      Police    Station,   West   Godavari   District,

registered for the offence 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 on 12.01.2021 on receiving

credible information about illegal transportation of ganja in two

vehicles from Narsipatnam to Zaheerabad, Medak District

Telangana State, the Police reached Valasapalli Check post on

Eluru to Chintalapudi SH-43 road, apprehended A1 to A6,

seized 1038 Kgs of ganja in 36 bags worth Rs.83,40,000/-, two

vehicles, cash of Rs.6,20,000/- and other belongings from them

under mediators report. Basing on the said report, the present
                                   2

crime is registered and A1 to A6 were sent to judicial custody on

13.01.2021.


3.    Heard learned counsel appearing on behalf of the

petitioners/A1 to A6 and learned Assistant Public Prosecutor for

the respondent-State.

4. Learned counsel for the petitioners submit that the

petitioners were remanded on 10.01.2021 and they have been

languishing in jail for the last 220 days. It is submitted that the

prosecution has filed an application under 36A(4) of the NDPS

Act seeking extension of remand before the Court below and the

Court below by docket order dated 13.07.2021 extended the

remand till 27.07.2021. It is submitted that as the Police failed

to file charge sheet within 180 days and ever after lapse of the

extended period, the petitioners are entitled for statutory bail.

5. On the other hand, learned Assistant Public Prosecutor

submits that Police have filed an application seeking extension

of time before the Court below, but the Court below has

extended the period only by 14 days instead of 180 days. He

submits that assailing the same revision is filed before this

Court with a delay of thirty days and the same was dismissed by

this Court. He submits that some of the petitioners belong to the

States of Maharastra and Telangana and if they are enlarged on

bail at this stage, it will be difficult for the prosecution to secure

their presence during the course of trial. Hence, he opposed the

bail applications.

6. Section 36(A) of the NDPS Act reads thus:

36A. Offences triable by Special Courts.--

(1) 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 sub-section (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 authorized 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 cluase (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 27A 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": Provided 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.]

7. Section 167 (2)of Cr.P.C reads thus:

(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) 1 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;

(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 XXXIII 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. 1 Explanation I.- 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 II.- 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.

8. The Hon‟ble Apex Court in case of Uday Mohanlal

Acharya v.State of Maharashtra1 has observed that personal

liberty is one of the 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 upto 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

(2001)5 SCC 453

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, could be violative of Article 21 of

the Constitution of India and the Hon‟ble Apex Court in recent

judgment in S.Kasi v. State2 wherein it was observed that the

indefeasible right to default bail under Section 167(2) is an

integral part of the right to personal liberty under Article 21,

and the said right to bail cannot be suspended even during a

pandemic situation as is prevailing currently. It was 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.

9. In view of the foregoing reasons and taking into

consideration the fact that the petitioners are languishing in jail

since 13.01.2021 and as the prosecution has failed to file charge

sheet within 180 days and even after lapse of the extended time,

the petitioners are entitled for statutory bail, which is an

2020 SCC OnLine SC 529

indefeasible right of the accused as laid down by the Hon‟ble

Apex Court in catena of cases.

10. Accordingly, this Criminal Petition is allowed. The

petitioners/A5, A6, A4, A2, A1 and A3 respectively shall be

enlarged on bail in connection with Crime No.20 of 2021 of

Dharmajigudem Police Station, West Godavari District on their

executing self bond for Rs.10,00,000/- (Rupees ten lakhs only)

with two sureties for a like sum each to the satisfaction of the

Court of the Judicial First Class Magistrate, Chintalapudi, West

Godavari District. On such release, the petitioners shall appear

before the Station House Officer, Dharmajigudem Police Station,

West Godavari District once in a week between 10.00 AM and

1.00 PM, till completion of trial and A5, A6, A4 and A3 shall not

leave the state.

As a sequel, all the pending miscellaneous applications shall

stand closed.

___________________________ LALITHA KANNEGANTI, J Date: 26.08.2021

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

ALLOWED

CRIMINAL PETITION No.1691, 1797, 3020, 3175, 3179 and 3229 of 2021

26.08.2021

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