Andhra Pradesh High Court - Amravati

Arjun Pangi vs The State Of Andhra Pradesh on 9 February, 2021

Bench: Lalitha Kanneganti

 

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA

TUESDAY, THE NINTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE

 

-PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 457 OF 2021
Between:

1. Arjun Pangi, S/o. Mukunda Pangi, Age. 26 years, Badapadar, Bangur Colony,
Malkangiri, State of Odisha.

2. Pangi Dasu, S/o. Dalapathi, Age. 23 years, Pada Gangavaram Village,
G.K.Veedhi Mandal, Visakhapatnam District.

.. .Petitioner/A.2 & A.3
AND

The State of Andhra Pradesh, through Station House Officer, Krishna Devi Peta

P.S, Visakhapatnam District, represented by Public Prosecutor, High Court At

Amaravati.

.. Respondent

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 enlarge the Petitioners/accused no.2 and 3 on bail in Crime No.42/2020 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 of Public Prosecutor for the
Respondent, the Court made the following. |
ORDER

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.457 of 2021 ORDER:-

This 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-2 and A-3 in connection with Crime No.42 of 2020 of the Station House Officer, Krishnadevipet Police Station, Visakhapatnam District for the offence punishable under Section 8(c) r/w 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic

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

2. The case of prosecution is that on 07.07.2020 on credible information about illegal transportation of ganja, the respondent police along with staff and mediators rushed to Sai Baba Temple, A.L.Puram Village of Krishnadevipet and while conducting vehicle check at 1.00 PM, the police found a lorry without number and the persons sitting in the vehicle tried to escape from the place, but the police apprehended them and on search of the vehicle, they found 1,188 KGs of ganja. The police seized the contraband, arrested the

accused and remanded them to judicial custody on the same day.

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/ A-2 and A-3 submits that the police failed to follow the procedure contemplated under the NDPS Act while conducting search and seizure. The petitioners were remanded to judicial custody on 07.07.2020 and from that day till now the police neither filed the charge sheet nor filed any application

seeking extension of time. Now the prosecution filed charge sheet.

_ TIT

Learned counsel further submits that immediately after completion of 180 days, he approached the Court below for grant of bail, but the Court below opposed the petition and the same was dismissed on the ground that though 180 days are completed, the contraband seized is commercial quantity, the bar under Section 37 of the NDPS Act has no application, as such dismissed the petition. He further submits that when once charge sheet is not filed within 180 days as contemplated under Section 36(A) of the NDPS Act, no application is filed seeking extension of time, the petitioner is entitled for default bail which is an indefaceable right of the accused, as such, the

petitioner is entitled for statutory bail.

5. The learned Public Prosecutor submits that the police completed the investigation and they are awaiting for RFSL. He also does not dispute the fact that even after lapse of 180 days, neither the police filed charge sheet nor an 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 areq 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

=o,

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 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

RO semiiping

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 XXXII 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;].?

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

' (2001)5 SCC 453

are

recent judgment in S.Kasi v. State2 wherein it was observed that

the indefeasible right to default bail under Section 167(2) is an

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Rs.5,00,000/- (Rupees five lakhs only) each with two sureties for a like sum each to the satisfaction of the Court of the Additional

Judicial First Class Magistrate, Narsipatnam. On suth release, the

petitioners shall appear before the Station House Officer, Krishnadevipet Police Station, Visakhapatnam District once in a

month till completion of trial and they shall not leave the State.

11. This Court observed that even in cases where Huge quantity of contraband is seized, the police are not vigilant in conducting investigation and filing charge sheet within 180 days. They are not even seeking extension of time for filing charge sheet, as such, this Court in several cases granting bail to the scouted as they are entitled for default bail. In these types of grave offences police are not expected to act in such a negligent manner. The Director General of Police shall take appropriate steps and issue guidelines to the Investigating Officer wherever it is found that the police failed to seek extension of time for filing the charge sheet and any other lapses

appropriate action shall be initiated.

12. Registry is directed to communicate a copy of this order to the

Director General of Police, Andhra Pradesh.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

. Sd/-E.KameswaraRao-

ASSISTANT REG) TRAR ITRUE COPY! ANC CER

For SECTION OF

_ The Metropolitan Sessions Judge-cum- 4% Addi. District & Sessions Judge-Special Judge for trail of Offences Under NDPS Act, Visakhapatnam.

The Additional Judicial First Class Magistrate, Narsipatnam, Visakhapatnam District.

The Superintendent, Central Jail, Visakhapantam.

The Station House Officer, Krishna Devi Peta Police Station, Visakhapatnam District.