Allu Prasad vs The State Of A.P
2021 Latest Caselaw 2709 AP

     HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

            CRIMINAL PETITION No.1450 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 petitioner/A-6 in connection with

Crime No.662 of 2020 of S.Rayavaram police station,

Visakhapatnam District, registered for the offence punishable

under Section 20(b)(ii)(C) r/w 8 (c) of the Narcotic Drugs and

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

2. The case of prosecution is that on 29.11.2020 on receipt

of credible information about illegal transportation of ganja, the

respondent police along with staff and mediators, rushed to

near Dolphin Dhaba on NH-16 road Highway of S.Rayavaram

Mandal and while conducting vehicle check, they arrested A-1 to

A-3 and seized 820 KGs of dry ganja in 25 plastic bags while

transporting the same in a lorry bearing No.UP 72 AT 4221

under the cover of mediators report. Basing on the said report,

the present crime was registered and sent the accused to

judicial custody on the same day. The accused 1 to 3 confessed

about the role of present petitioner as pilot of the crime vehicle

and he was arrested on 31.12.2020 and since then he has been

in judicial custody.

3. Heard Sri M.Chalapati Rao, learned counsel for the

petitioner and learned Assistant Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner/A-6 submits that the

petitioner is languishing in jail from the last 200 days. It is

stated that no contraband is seized from the petitioner even as

per the allegations he is piloting the vehicle containing

contraband and the petitioner is a agricultural coolie and

unconnected with the alleged offence. He submits that as

mandated under Section 36 of the NDPS act, police neither filed

charge sheet nor filed any application seeking extension of time,

as such, petitioner is entitled for default bail.

5. On the other hand, learned Assistant Public Prosecutor

submits that already extension petition is filed before the Court

below, however, the same is filed on behalf of accused 1 and 2.

6. Earlier also this Court in several cases has noticed that

where huge quantity of contraband is involved, police neither

filing charge sheet nor filing any application seeking extension of

time and several order copies were marked to Director General

of Police. It appears that no action has been initiated by Director

General of Police and every day this Court finds where huge

contraband is involved, the police for the reasons best known to

them are not filing extension petitions and this Court is

constrained to grant default bail to the accused. This Court is

very much dissatisfied with the way the respondent-Police are

functioning.

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 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 authorized 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 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 XXXIII 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;]. 2 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 Maharashtra1 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. State2 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

(2001)5 SCC 453

2020 SCC OnLine SC 529

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

on behalf of the petitioner 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.

11. Accordingly, this Criminal Petition is allowed. The

petitioner/A-6 shall be enlarged on bail in Crime No.662 of 2020

of S.Rayavaram Police Station, Visakhapatnam on his executing

self bond for Rs.8,50,000/- (Rupees eight lakhs fifty thousand

only) with two sureties for a like sum each to the satisfaction of

the Court of the Additional Judicial First Class Magistrate,

Yelamanchili, Visakhapatnam District. On such release, the

petitioner/A-6 shall appear before the Station House Officer,

S.Rayavaram Police Station, Visakhapatnam District once in a

week between 10.00 AM and 1.00 PM, till completion of trial.

Registry is directed to mark a copy of this order to the

Director General of Police.0

___________________________ LALITHA KANNEGANTI, J Date: 29.07.2021 KA