Upendra Setty vs The State Of Andhra Pradesh
2021 Latest Caselaw 165 AP

[3240]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

 

TUESDAY, THE NINETEENTH DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE

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:PRESENT:

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

 

CRIMINAL PETITION NO: 106 OF 2021

Between:

1. Upendra Setty, S/o Apparao, aged 23 years, R/o Komta Kulasingi (P),
Nadhaparu (M), Korapattu (D), Orissa State.

2. Janak Das Setty, S/o Thirupathi Setti, Aged 26 years, R/o Komta (V), Kulasingi
(P), Nadhaparu (M), Korapattu (D), Orissa State.

3. Das Pangi, S/o Simhadri Pangi, Aged 27 years, R/o Kuda (V), Golbri (P),
Nandhaparu (M), Korapattu (D), Orissa State.

4. Gasiram Setti, S/o Apparao setti, Aged 25 years, R/o Kuda/ (V), Golbri (P),
Nandhaparu (M), Korapattu (D), Orissa State.

5. Palamala Ganesh, S/o Appanna, Aged 36 years, R/o Komta (V), Kulasingi (P),
Nadhaparu (M), Korapattu (D), Orissa State.

6. Pangi Sukudeva, S/o Dhomurjai, Aged 18 years, Mattiguda (V), Rangabrolu (P),
Munchingpattu (M), Visakhapatnam

7. Sunil Kumar Setti, S/o Rusha Setty, Aged 24 years, R/o Nadhaparu (M),
Korapattu (D), Orissa Komta (V), Kulasingi (P), State.

8. Bhiswanath Setty, S/o rusha Setti, Aged 30 years, R/o Komta P Korapattu (D),
Orissa State.

.. .Petitioners/Accused Nos.1 to 8
AND

The State of Andhra Pradesh, Rep.by its Public Prosecutor High court of Andhra
Pradesh
...Respondent/Complainant
Petition under Section 437, 439 and 167 (2) 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 petitioners/accused 1 to 8 on bail pending further

investigation if any/trial in the above crime No.42 of 2020 of Hukumpeta Police Station.

The petition coming on for hearing, upon perusing the Petition and the
memorandum of grounds of criminal petition and upon hearing the arguments of Sri
Pardha Saradhi.A.V, 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.106 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-8 in connection with Crime No.42 of 2020 of the Station House Officer, Hukumpet Police Station, Visakhapatnam Rural 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 20.06.2020 on receipt of credible information about the transportation of ganja illegally, the Head Constable, staff along with two mediators reached Duguvapattu Bridge of Hukumpeta Panchayat and while conducting vehicle check, they noticed one Bolero pick up van _ bearing registration No.AP 31 TC 8050. On seeing the police, the driver of the van was reversing the vehicle and two motor cycles bearing Nos.AP 31 DH 0862 and AP 33 B 8246 which are following the Bolero van also tried to escape from there. The police stopped the vehicles and enquired the inmates. They revealed about the contraband and the police found 700 KGs of dry ganja in 350 packets and on the same day the police registered the crime, the accused were arrested,

remanded to judicial custody.

3. Heard Sri A.V.Pardhasaradhi, learned counsel for the petitioners and the learned Additional Public Prosecutor for the

respondent-State. exmess

RENE Heke

4. Learned counsel for the petitioners submits that by 16.12.2020, 180 days were completed and the police have not filed charge sheet. He further submits that charge sheet was filed on 21.11.2020 which is beyond 180 days. Hence the petitioners are

entitled for statutory bail.

5. The learned Public Prosecutor submits that the police have filed charge sheet and he further submits that except one accused all the accused belong to Orissa State. It is appropriate to look at

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 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 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

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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 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 takes precedence over the right of

1 (2001)5 SCC 453 2 2020 SCC OnLine SC 529 emma

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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. In view of the foregoing discussion, as the entire investigation is completed and also charge sheet is filed and further the petitioners are languishing in jail from the last 212 days, this Court deems it appropriate to grant bail to the petitioners/A-1 to A-8 on certain

conditions.

10. Accordingly, this Criminal Petition is allowed. The petitioners/ A-1 to A-8 shall be enlarged on bail on execution of*self bond for Rs.3,00,000/- (Rupees three lakhs only) each with two sureties for a like sum each to the satisfaction of the Court of the Judicial Magistrate of First Class, Paderu. The petitioners/A-1 to A-8 shall appear before the Station House Officer, Hukumpet Police Station, Visakhapatnam Rural once in a week i.e. on every Saturday between 10:00 A.M. and 12:00 P.M and they shall not leave the state till trial

is completed.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

| - Sdi- E.KameswaraRao HTRUE COPY// eB T REGISTRAR

SECTION Na ocr

To,

The Judicial Magistrate of First Class, Paderu.

The Superintendent, Central Jail, Visakhapatnam.

The Station House Officer, Hukumpeta Police Station One CC to Sri. Pardha Saradhi.A.V, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT]

6. One spare copy MM -

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HIGH COURT

LKJ

DATED:19/01/2021

ORDER

CRLP.No.106 of 2021

ALLOWED

99 AN ie