Andhra Pradesh High Court - Amravati

Mohmad Feroz vs The State Of Andhra Pradesh, on 20 January, 2021

Bench: Lalitha Kanneganti

 

 

[ 3240 ]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

WEDNESDAY, THE TWENTIETH DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE

:PRESENT:

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

 

CRIMINAL PETITION NO: 6149 OF 2020

Between:
1. Mohmad Feroz, S/o.Sadiq Ali, Aged about 43 years, R/o.Kaladera Colony, New
Malakpet, Hyderabad, Telangana State.
2. Anup Majumder, S/o.Khagesh Ranjan Majumder, Aged about 32 years,
R/o. Ekthapur village, Rowthari Post, Chakdha ity Nadiya District.
..Petitioners/Accused -- 1 & 2
AND

The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Judicature of
Andhra Pradesh at Amaravati.

...Respondent/Complainant

Petition under Section 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 release the petitioners on bail in Crime No.113 of 2020 on the file of the

Prohibition and Excise Police Station, Chinthapalli, Visakhapatnam District.

The petition coming on for hearing, upon perusing the Petition and memorandum
of grounds of criminal petition and upon hearing the arguments of Sri Medisi Ratna Rao,
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.6149 of 2020 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-1 and A-2 in connection with Crime No.113 of 2020 of Prohibition ®& Excise Police Station, Chinthapalli, 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 17.06.2020 the Station House Officer, Prohibition & Excise Police Station, Chinthapali on credible information about illegal transportation of ganja rushed to Tejangi Village limits of Chinthaplli Mandal and while conducting vehicle check, the police found one vehicle bearing No.UP 65 AT 8151, stopped the same and enquired. On search, they found 970 KGs of dry ganja in 23 gunny bags. The police seized the contraband under the cover of mediators report. Basing on the same, the above crime is registered and on the same day, the petitioners were

remanded to judicial custody.

3, Heard Sri Medisi Ratna Rao, learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-

State.

4, Learned counsel for the petitioners/ A-1 and A-2 submits that the petitioners are unconnected with the said offence and they falsely implicated in this case. Further the petitioners are languishing in jail

from 17.06.2020. So far the police neither filed any charge sheet nor

iO erty

filed any application seeking extension of time to file charge sheet.

Hence, the petitioners are entitled for statutory bail.

5. The learned Additional Public Prosecutor 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. He further submits that the petitioners belong to Telangana and

West Bengal States respectively.

6. 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 is granting bail to the accused as they are entitled for default bail. In these types of grave offences police in a casual manner are conducting investigation which this Court is not

able to appreciate.

7. 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 fi 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. |

8. 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

Co ee

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; |

(ti) 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;]

(6b) no Magistrate shal] authorize detention in any custody under this section unless the accused 1s 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;]. 7

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.

9, 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

[ee

* (2001)5 SCC 453 wn

Btn,

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 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.

10. In view of the foregoing reasons as the charge sheet is not filed within the statutory period of 180 days nor any application seeking

extension of time is filed, the petitioners are entitled for statutory

2020 SCC OnLine SC 529

To,

bail, which is an indefeasible right of the accused as laid down by

the Hon'ble Apex Court in catena of cases.

11. Accordingly, this Criminal Petition is allowed. The petitioners/ A-1 and A-2 shall be enlarged on bail on execution of self bonds 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 First Class Magistrate, Chinthapalli. On such release, the petitioners shall appear before the Station House Officer, Chinthapalli Prohibition & Excise Police Station, Visakhapatnam District once in a week i.e. on every Wednesday between 10.00 A.M. and 12.00 P.M., till the trial is

completed.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

Sd/-T.Madhavi NT REGI

ITTRUE COPY// ASSISTA F_ section Strider

. The Metropolitan Sessions Judge cum | Additional District & Sessions Judge --

Special Judge for Trial of offences under NDPS Act, Visakhapatnam.

The Judicial First Class Magistrate, Chintapalli.

The Superintendent, Central Prison, Visakhapatnam.

The Station House Officer, Prohibition and Excise Police Station, Chinthapalli, Visakhapatnam District

One CC to Sri. Medisi Ratna Rao, Advocate [OPUC]

Two CCs to Public Prosecutor, High Court of AP [OUT]