Borra Chandra Rao vs The State Of Andhra Pradesh,
2021 Latest Caselaw 469 AP

   

MONDAY, THE FIRST DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 251 OF 2021
Between:
Borra Chandra Rao, S/o. Late Chinnbbi, aged about 35 year, R/o Kindangi
Village and Panchayat, Paderu Mandal, Visakhapatnam District.
...Petitioner/Accused-1
AND

The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of

Judicature of Andhra Pradesh at Amaravati.

...Respondent/Complainant

Petition under Sections 437 & 439 of Cr.P.C, praying that in the circumstances
stated in the memorandum cf grounds filed in Criminal Petition, the High Court may be
pleased to release the petitioners/accused on bail in Cr. No.929 of 2020 of Chodavaram
Police station on the file The Additional District and Sessions Judge-Cum- Special
Judge for Trail of Narcotic Drugs and psychotropic Substance Act- Case At
Visakhapatnam.

The petition coming on for hearing, upon perusing the Petition and the
memorandum of grounds filed in support thereof and upon hearing the arguments of Sri
Kakumanu Joji Amrutha Raju, Advocate for the Petitioner and of Public Prosecutor for
the Respondent, the Court made the following.

ORDER

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.251 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 petitioner/A.1 in connection with Crime No.929 of 2020 of Chodavaram Police Station, | Visakhapatnam District, registered for the offences punishable under Section 20 (b) (ii) (C) read with Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

brevity "NDPS Act').

2. The case of prosecution is that on 15.07.2020, on receipt of credible information about illegal possession and transportation of Ganja, the Sub-Inspector of Police, Chodavaram Police Station, on securing the presence of mediators and a Gazetted Officer, rushed to Gowripatnam junction, Narasayyapet village outskirts of Chodavaram Mandal and conducted vehicle checking. While conducting vehicle checking at about 7.00A.M., they found one Swaraj semi smart GS Van _ bearing No.AP-39-TJ-5232 coming towards Narsipatnam and on seeing the police, the driver of the van tried to escape from the scene and the police caught hold of him and on interrogation, he confessed that they were transporting 252kgs Ganja and the police seized the contraband under the cover of mediator's report. The petitioner was arrested and remanded to judicial custody. Basing on the mediator's report,

the present crime is registered.

SO A

2 LK, J dep nacs of 2021 {

3. Heard Sri Kakumanu Joji Amrutha Raju, learned counsel for the petitioner and the learned Additional Public Prosecutor

for the respondent-State.

4. Learned counsel for the petitioner/A.1 submits that the petitioner has nothing to do with the present crime and he has been falsely implicated in the alleged offence. He submits that the petitioner was arrested on 15.07.2020 and since then he is languishing in jail. He further 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 they have filed charge sheet. As such, the petitioner is entitled for

statutory bail.

5. Learned Additional Public Prosecutor has not disputed the fact that 180 days time is elapsed and the prosecution failed to file any application seeking extension of time to file charge sheet.

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

"36A. Offences triable by Special Courts: (/) 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 !

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CRLP.No.251 of 2021

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":

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 5 !

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CRLP.No.251 of 2021

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

considers further detention unnecessary, he may order the accused to be

Sorwarded to a Magistrate having such Jurisdiction: Provided that-

otherwise than in the custody of the police, beyond the Period of fifteen

days, if he is Satisfied that adequate 8rounds exist for doing so, but no

under this Paragraph for a total period exceeding, -

@) ninety days, where the investigation relates fo an offence punishable

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 AXXIII for the purposes of that Chapter;]

(©) 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

that, notwithstanding the expiry of the period Specified in Paragraph (a),

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CRLP.No.251 of 2021

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 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

a a

! (2001)5 SCC 453 2.9920 SCC OnLine SC 529

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6 LK, J CRLP.No.251 of 2021

not only in the case of substantive penal Statutes but also in the

case of procedure Providing for the curtailed st 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 nor any application seeking extension of time is filed, 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.

7. Accordingly, this Criminal Petition is allowed. The petitioner/A.1 shall be enlarged on bail on their executing personal bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for a like Sum each to the satisfaction of the Additional Judicia] Magistrate of First Class, Chodavaram,

Visakhapatnam District.

. Sd/-E.KameswaraRao ASSISTANT REGISTRAR C .

TRUE COPY// SECTION OFFICER _

The Additional District and Sessions Judge-Cum- Special Judge for Trail of Narcotic Drugs and psychotropic Substance Act- Case At Visakhapatnam. _ The Addl. Judicial First Class Magistrate at Chodavaram, Visakhapatnam District The Superintendent, Central Prison, Visakhapatnam.

The Station House Officer, Chodavaram Police Station, Visakhapatnam.

One CC to Sri. Kakumanu Joi Amrutha Raju, Advocate [OPUC]

Two CCs to Public Prosecutor, High Court of AP [OUT]

One spare copy.

ae ee

HIGH COURT

LK,J

DATED:01/02/2021

ORDER

CRLP.No.251 of 2021

DIRECTION