Peyyala Ramesh vs The State Of Andhra Pradesh
2021 Latest Caselaw 522 AP

 

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
TUESDAY, THE NINETEENTH DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE
: PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 113 OF 2021
Between:

1. Peyyala Ramesh, S/o. Demudu, Age 36 Years, Rio. Bakuluru Village, Koyyuru
Mandal, Visakhapatnam District.

2. Lagija Rama Krishna, S/o. Nookaraju, Age 25 years, R/o. Sankada Kothuru
Village and Panchayath, G.K.Veedhi Mandal, Visakhapatnam District. N/o.
Thotaluru Village, Koyyuru Mandal, Visakhapatnam District.

3. Vajrapu Butchibabu (Bujji Babu), S/o. Peda Chinnabbayi, Age 21 years, Rio.
Ankada Kothuru Village, Sankada Panchayathi, G.K.Veedhi Mandal,
Visakhapatnam District.

_..Petitioners/A.1 to A.3
AND
The State of Andhra Pradesh through Station House officer, Krishna Devi Peta P.S,
Visakhapatnam District, rep. by Public Prosecutor, High Court at Amaravati
...Respondent

Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances

stated in the memorandum of grounds filed in the Criminal Petition, the High Court may
be pleased to enlarge the Petitioners/A.1 to A.3 on bail in Cr.No.51/2020 on the file of
Krishna Devi Peta P.S. Visakhapatnam District.

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
G Venkata Reddy, Advocate for the Petitioners and Public Prosecutor for the
Respondent, the Court made the following.

ORDER

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.113 of 2021 ORDER:-

This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.}} to grant regular bail to the petitioners/A-1 to A-3 in connection with Crime No.51 of 2020 of the Station House Officer, Krishnadevipet Police | Station, Visakhapatnam District for the offence punishable under Section Section 8(c) r/w 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 29.08.2020 on credible information about illegal transportation of ganja, the respondent police rushed to Alluri Park, A.L.Puram of Golugonda Mandal and while conducting vehicle check, they found an auto bearing No.AP 31 TC 1544. On seeing the police, the inmates of the auto tried to escape, but the police apprehended them. On verification, the police found 98 KGs of ganja from the possession of the petitioners. Basing on the same, the above crime is registered, arrested the accused and seized the contraband. On the same day, the petitioners were

remanded to judicial custody.

3. Heard Sri G.Venkata Reddy, learned counsel for the petitioners

and the learned Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioners submits that the petitioners are languishing in jail from 29.08.2020 and the police have not filed charge sheet though the investigation is completed. Hence, the

petitioners are entitled for statutory bail.

5. The learned Public Prosecutor submits that the stvestgation is

completed, RFSL report is also received and yet to file charge sheet. However, the learned Public Prosecutor does not deny the fact that they have not filed any application seeking extension of time before

the Court below as contemplated under Section 36(A) of the NDPS

Act.

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 offenc 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 Crimina! °-~~-4nre, 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. ]

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) ' 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; ]

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(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 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;].?

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 Maharashtra! 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 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. State? 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 tak=s precedence over the right of

1 (2001)5 SCC 453 * 2020 SCC OnLine SC 529

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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. Taking into consideration the fact that the petitioners are languishing in jail from 29.08.2020, even after lapse of 180 days neither the police filed the charge sheet nor an application is filed seeking extension of time as per Section 36(A)(4) of the NDPS Act,

the petitioners are entitled for statutory bail.

10. Accordingly, this Criminal Petition is allowed. The petitioners/ A-1 to A-3 shall be enlarged on bail on execution of self bond for Rs.1,00,000/- (Rupees one lakh only) each with two sureties for a like sum each to the satisfaction of the Court of the Additional Judicial First Class Magistrate, Narsipatnam. The petitioners/A-1 to A-3 shall appear before the Station House Officer, Krishnadevipet Police Station, Visakhapatnam District once in a week 1.e. on every

Saturday between 10:00 A.M. and 12:00 P.M. till trial is completed.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

Sd/-K.TataRao ASSISTANT REGISTRAR

IITRUE COPY// FS (ow SECTION OFFICER

The Addl. Judicial First Class Magistrate, Narsipatnam, Visakhapatnam District The Superintendent, Central Jail, Visakhapatnam

The Station House Officer, Krishna Devi Peta P.S, Visakhapatnam District. One CC to Sri G Venkata Reddy, Advocate [OPUC]

Two CCs to Public Prosecutor, High Court of Andhra Pradesh. [OUT]

One spare copy Lone A

To,

Oakwn>

SP

Note: Amended the Name of the Petitioner No.2 as "Lagija Rama Krishna" instead of "Lagija Rama Visakhapatnam" in the cause title of the | A No.1 Order dt.19/1/2021 in Crip No.113/2021, as per the Court order dt.2/2/2021 in 1A.No.1/2021 in CriP.No.113/20201

Substitute this Amended Order dt. 2/2/2021 in the Place of earlier order dt: 49/1/2021 which was dispatched on Dt.23/1/2021.

Sd/-K.TataRao ASSISTANT REGISTRAR

HIGH COURT

LKJ

DATED: 19/01/2021 02-02-2021

AMENDED ORDER CRLP.No.113 of 2021

DIRECTION

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