Andhra Pradesh High Court - Amravati

Veeri Durga Prasad, vs The State Of Andhra Pradesh, on 14 July, 2021

   

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI.

WEDNESDAY, THE FOURTEENTH DAY OF JULY, TWO THOUSAND AND TWENTY ONE
> PRESENT :

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRL.P.No, 2097 of 2021
Between :-
1.Veeri Durga Prasd, $/o. Ganesh {A-1)
2,.Kesagoni Sai Kumar, S/o. Anjaiah (A-2)
bones Petitioners/Accused Nas.1 & 2

AND

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

paves Respondent/Complainant.

Petition filed under Sections 437 and 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 petitioner on bail in NDPS

SC.No. of 202 on Cr.No. 03/2021, Narsipatnam Town Police Station.

The petition coming on for hearing, upon perusing the memorandum of
grounds filed in support thereof and upon hearing the arguments of
Sri Medisi Ratna Rao, Advocate for the Petitioners and of the Addl. Public
Prosecutor on behalf of respondent/State, the Court made the following

ORDER :;-
 

THE HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION No.2097 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/Al and A2 in connection with Crime No.3 of 2021 of Narsipatnam Town Police Station, Visakhapatnam, registered for the offence punishable under Section 20(b}(ii) c) r/w 8 (c) of Narcotic Drugs and Psychotropic

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

2, The case of the prosecution is that on 05.01.2021, on receipt of credible information about illegal possession and transportation of Ganja, the Sub-Inspector of police, Narsipatnam Town police station and his staff along with mediators went to the road between Krishnapuram and Baipureddipalem villages near turning at 15.30 hours and while conducting vehicle checking, at about 16.00 hours, the Sub- Inspector of Police stopped one car bearing No.AP 36AX0126 from Narsipatnam side and proceedings towards Tuni, on seeing the police, two persons in the car tried get down the car and absconded from there, the police surrounded them and on questioning, they disclosed that they are transporting the Ganja bags in the car. Then the police seized 50 kes of Ganja and the car bearing No.AP 36AX0126 from their possession, arrested

them and sent for remand. Hence, the petition.

3. Heard Sri Medisi Ratnarao, learned counsel for the petitioners/Al and A2 and the learned Assistant Public

Prosecutor for the réspondent-State,

4, Learned counsel for the petitioners/Al and A2 submits that the petitioners were unconnected with the offence alleged and they have been falsely implicated in this case. He submits that the petitioners were arrested and remanded to judicial custody on 05.01.2021 and since then they are languishing in Jail. He also submits that even after completion of 190 days, the police neither filed any application seeking extension of time nor filed the charge sheet, as such, the petitioners are entitled for

Statutory bail.

3, Learned Additional Public Prosecutor submits that entire investigation is completed except awaiting for Regional Forensic Science Laboratory report. He has not disputed the fact that 190 days time is elapsed and the Prosecution did not file any application seeking extension of time to file charge sheet. He also submits that the petitioners belong to Telangana State and if they are released on bail, it is difficult to secure their presence during

the course of trial

6. Section 36A of the NDPS Act reads thus:

"36A. Offences triable by Special Courts: (}) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 197 4),--

{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

tod

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 offerice under this Act is forwarded to a Magistrate under subsection {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 hy the Special Court where such Magistrate cansiders (} 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 ta the Special Court having jurisdiction;

{ec} 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 @ 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 clause

(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 27 A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 ef 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 ufe er imprisonment for a term of not less than ten vears:

{i)) 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 uncler 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 hin;

(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, notwithstandine tha 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 ariss whether an accused person was produced before the Magistrate as required under paragraph fb}, the production of the accused person may be proved by his

signature on the order authorizing detention."

8. The Hon'ble Apex Court in the case of Uday Mohanlal Acharya Vs. State of Maharashtra! has observed that personal liberty is one of 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 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 1607 (2) Cr.P.C. 1s 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

* (2001) 5 SCC 483 * 2020 SCC OnLine SC 529

in the construction of a penal statute, the Courts must favour the mterpretation 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 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 as contemplated under Section 36A (4) of the NDPS Act nor any application seeking extension of time is filed, the petitioner is 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.

10. Accordingly, this Criminal Petition is allowed. The petitioners/Al and A2 shall be enlarged on bail on their executing personal bond for Rs.1,00,000/- (Rupees one lakh only} each with two sureties each for a like sum to the satisfaction of the Additional Judicial Magistrate of First Class, Narsipatnam. However, the petitioners /Al and A2 shall appear before the Station House Officer, Narsipatnam Town 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.

As a sequel, all the pending miscellaneous applications shall

stand closed.

SD USri Devi ASSISTANT REGIST RA // TRUE COPY// SATB 8

'or SECTION-OFFICER

1.The Metropolitan Sessions Judge-cum-| Additional District & Sessions Judge-Special Judge for Trial of Offences under NDPS Act, Visakhapatnam.

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

3.The Station House Officer, Narsipatnam Town Police Station, Visakhapatnam District.

4.The Superintendent, Central Prison, Visakhapatnam.

5. Two CCs to the Public Prosecutor, High Court of A.P., at Amaravati(OUT)

6.One CC to Sri Medisi Ratna Rao, Advocate(OPUC)

7.One spare copy.

TKK