Andhra Pradesh High Court - Amravati

Chandra Mohan, vs State Of Andhra Pradesh, on 20 January, 2021

Bench: Lalitha Kanneganti

 

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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

 
 
 
 

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THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI '

CRIMINAL PETITION NO: 5176 OF 2020 » Set
Between:

Chandra Mohan, S/o. Ochu Dhevar.
Periya Swami, S/o. Venkatachalam.
Murugesan, S/o. Kanada Swamy.

Anatha Selam,, S/o. Chockalingam.

PoON>

- ca eee Petitioner
AND |

State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Judicature
at Amaravathi for the State of Andhra Pradesh, Amaravathi.

.... Respondent/Complainant

Petition under Section 437 and 439 of Cr.P.C, praying that in the circumstances
stated in the grounds filed the Criminal Petition, the High Court may be pleased to grant
Regular Bail to him in connection with Crime No.162 of 2020 of Maddipadu Police
Station, in the interests of justice.

The petition coming on for hearing, upon perusing the Petition and the grounds
filed in support thereof and upon nef the arguments of Sri Panga Sivanarayana
Advocate for the Petitioners, and of L blic Prosecutor for the Respondents and the
Court made the following.

ORDER:

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.5176 of 20210 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/Accused in connection with Crime No.162 of 2020 of Maddipadu Police Station, Prakasam 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 21.07.2020 on receipt of credible information about illegal possession and transportation of ganja to Tamilnadu State from Andhra Pradesh for the purpose of selling the same, the Sub Inspector of Police reached Coastal centre, Maddipadu Mandal, NH-16 Guntur to Ongole. While conducting vehicle check, the police found one lorry bearing No.TN 30 BX 1399 and Bolero Maxi Truck bearing No.TN 52 P 7605 and on search, they found 882 KGs of ganja. The police seized the contraband, arrested the accused and remanded them to judicial custody on the same

day.

3. Heard Sri P.Sivanarayana, learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-

State.

4. Learned counsel for the petitioners submits that the petitioners were arrested and remanded to judicial custody on 21.07.2020. So igs

far 180 days are elapsed, but the police neither filed charge sheet nor

filed any application seeking extension of time. Henc

are entitled for statutory bail.

The learned Public Prosecutor also does not dispute the same.

He submits that the investigation is in progress.

IT is appropriate to look at Section 36(A)(4) of the NDPS Act,

which reads thus:

(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.

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,-

e, the petitioners

(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 Il.- 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

* (2001)5 SCC 453

| 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.

9. 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, 4 cv] [

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 petitioners/ Accused shall be enlarged on bail on execution of self bonds for Rs.1,00,000/- (Rupees one lakh only) each with two sureties for a

like sum each to the satisfaction of the Court of the Special Mobile

2 9020 SCC OnLine SC 529

Magistrate of First Class, Ongole. On such release, the petitioners shall appear before the Station House Officer, Maddipadu Police Station, Prakasam District, once in a week i.e. on every Wednesday

between 10:00 A.M. and 12:00 P.M. till filing of charge sheet.

Consequently, miscellaneous applications pending, if any, shall

stand closed. .

ouarwon>

Sd/-K.TataRao ASSISTANT REGISTRAR IITRUE COPY//

'Ne Pp SECT dni OFFICER

The Judicial Magistrate of First Class for Excise, Ongole.

The Superintendent, Ongole Prison, Prakasam District.

The Station House Officer, Maddipadu Police Station, Prakasam District. One CC to Sri. Panga Sivanarayana Advocate [OPUC]

Two CC's to Public Prosecutor, High Court of AP, Amaravati[OUT]

One spare copy

HIGH COURT