Andhra Pradesh High Court - Amravati

Masada Satishkumar Alias Dj vs The State Of Andhra Pradesh on 19 January, 2021

Bench: Lalitha Kanneganti

 

  

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA

"------

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

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI--

CRIMINAL PETITION NO: 35 OF 2021 ---

Between:

1.

2.

3.

Masada Satishkumar @ DJ S/o. Sanyasirao, aged about 23 years,
Boddagondhi Village, G.Madugula Mandal, Visakhapatnam District.
Majji Bonjubabu @ Kranthi, S/o. Kondababau Aged about 23 years,
Jallipalli Village, Paderu Mandal, Visakhapatnam.
Jangidi Appanna @ Appi @ Teja, S/o. Somanna, aged about 24 years,
Jallipaili Village, Paderu Mandal, Visakhapatnam District

...Petitioner/Accused 1 to 3

AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of
Judicature of Andhra Pradesh at Amaravati.
.. .Respondent/Complainant--

on
Petition under Sections 437 and 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 in Cr.No.648 of
2020 of Sabbavaram Police Station Visakhapatnam District on the file "The
Additional District and 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 Petitioners and
of Public Prosecutor for the Respondent, the Court made the following. ---
ORDER:

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.35 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 petitioners/A.1 to A.3 in connection with Crime No.648 of 2020 of Sabbavaram 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 brevity

"NDPS Act').

2. The case of prosecution is that on 15.07.2020, on receipt of credible information about illegal possession and transportation of Ganja, the Sub-Inspector of Police, Sabbavaram Police Station, on securing his staff and mediators, rushed to Goddes Bhuvenaeswari Devi Temple junction near Bangarammapalem village and while conducting vehicle checking, they noticed one scooty bearing No.AP-31-CV-4906 was coming from Venkannapalem and on seeing the police, they tried to skulk away, but the police apprehended them and on verification, they found that the petitioners were carrying 42 kgs of Ganja in 21 packets each containing 2 kgs, seized the same under the cover of mediator's report. The police arrested the petitioners on 21.07.2020 and remanded to judicial custody on

the same day.

ease neosem

2 LK, J

CRLP.No.35 of 2021

3. Heard Sri Kakumanu Jogi Amrutha Raju, learned counsel for the petitioners and the learned Additional Public Prosecutor

for the respondent-State.

4. Learned counsel for the petitioners/A.1 to A.3 submits that the petitioners have not committed any offence much less the alleged offence and they have nothing to do with the alleged seizure from their possession. He further submits that the petitioners were arrested on 21.07.2020 and since then they are languishing in jail. He further submits that the police have already completed the investigation. He relied on the judgment of the Hon'ble Supreme Court in Tofan Singh vs. State of Tamilnadu in Criminal Appeal No.152 of 2013 and batch wherein it is observed that registration of FIR basing on the confession is bad. Further as per Section 167(2) of Cr.P.C, the police have to file the charge sheet within 180 days. He submits that in this case neither they have filed any application seeking extension of time nor they have filed charge sheet. As such, the

petitioners are entitled for statutory bail.

5. Learned Additional Public Prosecutor submits that the investigation is still pending for arrest of A.6 and hence, the petitioners are not entitled for bail. Learned Public Prosecutor has not disputed the fact that 180 days time is elapsed and the prosecution failed to file any application seeking extension of

time to file charge sheet.

3 LK, J

CRLP.No.35 of 2021

6. 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 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 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 production of the accused person may be proved by his signature on the

order authorizing detention."

7. The Hon'ble Apex Court in the case of Uday Mohanlal Acharya v.State of Maharashtra! has observed that personal

liberty is one of cherished objects of the Indian Constitution and

' (2001)5 SCC 453

4 | LK, J

CRLP.No.35 of 2021

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. State? 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

? 2020 SCC OnLine SC 529 a

Oe,

5 LK, J CRLP.No.35 of 2021 case of procedure providing for the curtailment of the liberty of the accused.

8. In view of the foregoing reasons, as the charge sheet is not filed within the statutory period of 180 days as contemplated under Section 36 of the NDPS Act nor any application seeking extension of time is filed, the petitioners are 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.

9. Accordingly, this Criminal Petition is allowed. The petitioners / A.1 to A.3 shall be enlarged on bail on their executing personal bond for Rs.50,000/- (Rupees fifty thousand only) each with two sureties for a like sum each to the satisfaction of the I Additional District and Sessions Judge-cum- Special Judge for Trial of offences under Narcotic Drugs and Psychotropic Substance Act at Visakhapatnam. However, the petitioners/A.1 to A.3 shall appear before the Station House Officer, Sabbavaram 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.

Sd/-M.RameshBabu

ssi meres ! | ITRUE COPY! ~-- SECTION OFFICER

F To, TL

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

2. The Superintendent, Central Prison, Visakhapatnam.

3. The Station House Officer, Sabbavaram Police Station « Visakhapatnam District.

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

5. Two CCs io Public Prosecutor, High Court of AP [OUT] --

6. One spare copy.

MSB

HIGH COURT