Subramanian Dharmendran vs The State Of Andhra Pradesh
2021 Latest Caselaw 5272 AP

          HONOURABLE SRI JUSTICE D. RAMESH

             Criminal Petition No.6999 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/A.1 & A2 in connection

with Crime No.325 of 2021 of Mangalagiri Rural Police Station,

Guntur District, registered for the offences punishable under

Section 8(c) read with 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 12.06.2021 at 17.30

hours when the SI of Police, the complainant Ramavath

Srinivasa Rao and mediators and staff intercepted Ashok

Leyland Lorry bearing No.TN 24 8910 at Kaza Toll Plaza,

Vijayawada, two persons tried to escape by leaving the Ganja

loaded lorry at Tollgate. They were caught hold by police and

recorded their confession by figuring them as A1 & A2 and

seized 60 packets of ganja (each packet 2 Kgs weight) along with

lorry, cash of Rs.40,000/- and two mobile phones from their

possession in presence of mediators and registered the instant

case in Crime No. 325 of 2021. The petitioners were arrested on

13.06.2021 and remanded to judicial custody.

3. Heard learned counsel for the petitioners and the learned

Additional Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioners/A.1 & A2 submits that

the petitioners have nothing to do with the present crime and

they have been falsely implicated in the alleged offence. He 2 DR, J

CRLP.No.6999 of 2021

submits that the petitioners were arrested on 13.06.2021 and

since then, they are languishing in jail. He further submits that

the police failed to file charge sheet even after lapse of 180 days.

He submits that as per Section 36A (4) of the NDPS Act, the

police have to file the charge sheet within 180 days. He submits

that 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.

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

"36A. Offences triable by Special Courts: (l) 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;

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                                                                   CRLP.No.6999 of 2021

(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":

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." 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 4 DR, J

CRLP.No.6999 of 2021

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."

7. The Hon'ble Apex Court in the case of Uday Mohanlal

Acharya v.State of Maharashtra1 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

(2001)5 SCC 453 5 DR, J

CRLP.No.6999 of 2021

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. State2 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 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.

    2020 SCC OnLine SC 529
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                                                      CRLP.No.6999 of 2021

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 petitioners are

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/A.1 & A2 shall be enlarged on bail on their executing

personal bonds for Rs.2,00,000/- (Rupees Two lakhs only) each

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

the Additional Judicial Magistrate of First Class, Mangalagiri,

Guntur District.

                                                  ________________
                                                   D. RAMESH, J
16.12.2021
KK
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                                 CRLP.No.6999 of 2021



HONOURABLE SRI JUSTICE D. RAMESH




  Criminal Petition No.6999 of 2021


             16.12.2021