Kondhiriya Lakshmidar vs The State Of Andhra Pradesh.
2021 Latest Caselaw 518 AP

!

 

i, ) IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVAT

TUESDAY, THE SECOND DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE ~~

   

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTL*

CRIMINAL PETITION NO: 5508 OF 2020
Between:

Kondhiriya Lakshmidar, S/o. Late Mohan Rao, aged about 21 years, Occ: Auto
Driver, R/o. Busiputtu Village, Munchingaputt Mandal, Visakhapatnam District.
...Petitioner/Accused.2__--
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 of grounds filed in Criminal Petition, the High Court may be
pleased to release the petitioners on bail Cr.No.973 of 2020 of Chodavaram Police
Station, Visakhapatnam on the file the Additional District & 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

riminal Petition No.5508 of 2020

Criminal Petition "o-S2

ORDER:

Ve

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.2 in connection with Crime No.973 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

previty "NDPS Act').

2. The case of prosecution is that on 02.08.2020, 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 Cheedikada junction of Chodavaram Mandal and conducted vehicle checking. While conducting vehicle checking at about 10.45A.M., they found one car pearing Regd. No.AP32-B-7979 was coming towards Chodavaram side from Vaddadi and on seeing the police, the inmates of the car tried to skulk away and the police caught hold of them and on interrogation, they confessed that they were transporting 32 Kgs of ganja and the police seized the same under the cover of mediator's report. The petitioner was arrested and remanded to judicial custody on

02.08.2020.

2 LK, J CRLP.No.5508 of 2020

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 02.08.2020 and since then he is 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 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. He submits that the entire investigation is completed and the FSL report is awaited and after receipt of FSL report, the police will file charge sheet.

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

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

3 LK, J

CRLP.No.5508 of 2020

1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit fora period not exceeding fifteen days in the whole where such Magistrate is 4 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 oF 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 @ 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 a" offence under this Act or upon complaint made by an officer of the Central Government or & 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, 4 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 hail 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 4

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, 1 973 (2 of I 974), 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

4 LK, J CRLP.No.5508 of 2020 ¥

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

Jor 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 Magistrate thinks Jit, 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-

(@)' 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, -

(Gi) 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;

{tt) 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 XXXII for the purposes of that Chapter; ]

(8) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;

(¢) 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 L- 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;].?

Explanation II.- If any question arises whether an accused person was

produced before the Magistrate as required under Paragraph (b), the

LK, J

CRLP.No.5508 of 2020

production of the accused person may be proved by his signature on the order authorizing detention."

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

Acharya v.state of Maharasht ects of the Indian C

e of cherished obj dance with law and

7. that personal

rai has observed

onstitution and

liberty is 0D

deprivation of the same ©

conformity with the

e Constitution. Whe

an only be in accor

in provisions thereof, as stipulated under n the law provides that the

Article 21 of th

ould authorize th

e detention of the accused in

Magistrate © n the proviso to

eriod as indicated i

up to a maximum Pp ny further detention

n 167 of Cr.P.C, @ lan by the investigating

custody Section (2) of Sectio thout filing of a chal

would not be in acco

sub

beyond the period wi e a subterfuge and

the provisions of th

rdance

agency would b e Criminal

with law and inconformity with ve of Article 21

h, it could be violati

e Code, and as suc le Apex Court in

Procedur ndia and the Hon'b

of the Constitution of I e? wherein it was observed

recent judgment in S.Kasi v. Stat 167 (2)

ible right to default bail under Section

that the indefeas integral part of the right to personal liberty under

Cr.P.C. is an n, and the said right

to bail cannot

Article 21 of the Constitutio ga pandemic situation as 1S prevailing

pended even durin nasized that the righ the right of the St

be sus t of the accused to be

rrently. It was emp

cu ate to

set at liberty takes precedence over

investigation an

d submit a charge sheet.

carry on the Additionally, it is well settled that in case of any ambiguity in

§ (2001)5 SCC 453 2.9920 SCC OnLine Sc 529

--_

mo why

6 LK, J CRLP.No.5508 of 2020 e 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 Teasons, 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.

7. Accordingly, this Criminal Petition is allowed. The petitioner/A.2 shall be enlarged on bail on his executing personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Additional District and Sessions Judge-cum-Special Judge for

trial of NDPS cases at Visakhapatnam.

Sd/-M.RameshBabu ASSISTANT REGISTRAR Foie IRUE COPY// SECTION OFFICER

(

The Additional District & Sessions Judge- Cum- Special Judge for Trail of Narcotic Drugs and psychotropic Substance Act- Case At Visakhapatnam.

The Superintendent, Central Prison, Visakhapatnam. --

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

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

One spare copy.

HIGH COURT

LK,J

DATED:02/02/2021

ORDER

CRLP.No.5508 of 2020

DIRECTION