Andhra Pradesh High Court - Amravati

Pachina Srinivasa Rao Srinu vs The Station House Officer on 4 February, 2021

Bench: Lalitha Kanneganti

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

THURSDAY, THE FOURTH DAY OF FEBRUARY, TWO THOUSAND AND TWENTY ONE
: PRESENT :

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRL.P.No. 567 of 2021

     
   

Between:-

Pachina Srinivasa Rao @ Srinu, S/o. Apparao. Ry

cece Petitioner/Accused [email protected]
Grae
AND
The Station House Officer, Anantagiri Police Station,
Visakhapatnam District, Represented by its Public Prosecutor, High Court of
Andhra Pradesh at Amaravathi.

seeee Respondent.

Petition filed under Sections 437 & 439 of Cr.P.C. praying that in the
circumstances stated in the Memorandum of Grounds of Criminal Petition,
the High Court may be pleased to enlarge the petitioner on bail in Cr.No.
69 of 2020 dated 16-07-2020 on the file of Anantagiri Police Station,

Visakhapatnam District.

The petition coming on for hearing, upon perusing the memorandum of
grounds filed in support thereof and upon hearing the arguments of
Sri Suresh Kumar Potturi, Advocate for the Petitioner and of the Addl.
Public Prosecutor on behalf of respondent/State, the Court made the
following

ORDER :-
 

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION No.567 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-2 in connection with Crime No.69 of 2020 of Ananthagiri Police Station, Visakhapatnam District, registered for the offences punishable under Section 8 (c) r/w 20

(b) (ii) (c) and 25 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short "NDPS Act").

2. The case of prosecution is that on 16.07.2020 at 7.00 hours, on receipt of credible information about transportation of Ganja, the Sub-Inspector of Police, Ananthagiri Police Station while conducting vehicle checking at Damuku Main Road Junction at about 8.30 a.m. they noticed one Innova Car bearing No.DL 04 CNE 1300 was coming from Araku side and proceedings towards Visakhapatnam side, and on seeing the police, they tried to run away, but the police apprehended A-1, but A-2 and A-3 managed to escape from the spot. On verification, the police found that the accused were carrying 120 Kgs of Ganja in four gunny bags each weighing 30 Kgs and seized the same under the cover of mediators report. On 20.07.2020 the petitioner was arrested in another crime

i.e. Crime No.70 of 2020 and was remanded to judicial custody.

3. Heard Sri Suresh Kumar Potturi, learned counsel for the petitioner and the learned Additional Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner/A-2 submits that the petitioner has not committed any offence much less the alleged offence and he has been falsely implicated in the alleged crime. He submits that the petitioner was arrested on 20.07.2020 and since then he is languishing in jail. He further submits that the police have already completed the investigation, but the police neither filed charge sheet nor made any application seeking extension of time for filing charge sheet. He submits that in this case the police neither filed any application seeking extension of time nor filed the

charge sheet, as such, the petitioner is entitled for statutory bail.

5S. Learned Additional Public Prosecutor has not disputed the fact that 180 days time is elapsed and the prosecution did not 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: (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 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 isa 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 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) | 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;

{u1) 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. | 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 the case of Uday Mohanlal Acharya Vs. State of Maharashtra! has observed that personal

liberty is one of cherished objects of the Indian Constitution and

' (2001) 5 SCC 453

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. State2 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 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 liberty of the accused.

9. In view of the foregoing reasons, as the charge sheet is not

filed within the statutory period of 180 days as contemplated

2 2020 SCC OnLine SC 529

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.

10. Accordingly, this Criminal Petition is allowed. The petitioner/A-2 shall be enlarged on bail on his executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two sureties each for a like sum to the satisfaction of the Judicial First Class Magistrate, Araku. However, the petitioner/A.2 shall appear before the Station House Officer, Ananthagiri Police Station, Visakhapatnam District on every Saturday and Sunday between 10.00 A.M. and 12.00 P.M. till filing of the charge sheet.

As a sequel, all the pending miscellaneous applications shall

stand closed.

Sd/-T.Madhavi

ASSISTANT REGISTRAR / [TRUE COPY// S Kaye

for SECTION OFFICER i District.

1 The Judicial First Class Magistrate, Araku , Visakhapssnam i

2.The Station House Officer, Anantagiri Police , Visakhapatnam District. | vicahapatnam. |

3.The Superintendent, Central Jail, Veh ' pat ame at amaravati(OUT)

to the Public Prosecutor, ! Fone cc to Sri Suresh Kumar Potturi, Advocate(OPUC)

6.One spare COPY.

TKK

HIGH COURT