Rahul Kumar Mishra vs State Of Andhra Pradesh
2021 Latest Caselaw 2043 AP

 

 
  

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI -

MONDAY, THE TWENTY FIRST DAY OF JUNE
TWO THOUSAND AND TWENTY ONE

:-PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 2948 OF 2024 4
Between:
1. Rahul Kumar Mishra, S/o. Late Uttam Mishra, aged about 20 years,
Bharauli Bhojpur District, Bihar State, Pin-802165.
2. Rajesh Paswan, S/o. Gutheswar Paswan @ Gupteshhwar Raswan, aged
about 27 years, Near Idea Tower, Ramdathi, Parsonda, Bhojpur, Bihar,
Pin-802 112.

...Petitioners/Accused-1 and 2---
AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of
Andhra Pradesh, at Amaravathi,
..Respondent/Complainant
Petition under Sections 437 &~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.69 of
2020 of Araku Valley Police Station, Visakhapatanam 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 JojfAmrutha Raju, Advocate for the Petitioners and
of Public Prosecutor for the Respondent, the Court made the following.

ORDER:

Zé

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.2948 of 2021 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 petitioner/A-1 and A-2 in connection with Crime No.69 of 2020 of Araku Police Station, Visakhapatnam District, for the offence punishable under Section Section 8(c} r/w 20(b}(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS

Act').

2. The case of prosecution is that on 03.11.2020 on credible information about illegal transportation of ganja, the Sub Inspector of Police, Araku Police Station along with his staff and mediators reached NTR Ground,Araku Valley Main road and while conducting vehicle check, they arrested the accused | and 2, seized 750 KGs of dry ganja while transporting the same in Ashok Leyland van bearing registration No.NL Ol K 5355 under the cover of mediators' report. Basing on the said mediators' report, the crime was registered and

the accused were remanded to judicial custody on the same day.

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

respondent-State.

4. Learned counsel for the petitioners/A-1 and A-2 submits that the petitioners have not committed any offence as alleged by the prosecution and they have been languishing in jail since more than

180 days. But the police neither filed the charge sheet nor filed any

i)

application seeking extension of time though 180 days elapsed as contemplated under Section 36{A) of the NDPS Act. He further submits that as the police failed to file the charge sheet within 180

days, the petitioner is entitled for default bail.

3. The learned Assistant Public Prosecutor submits that huge quantity i.e. 750 KGs of contraband is seized from the possession of the petitioners. However, he also does not dispute the fact that even after lapse of 230 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 submits that as the other accused are yet to be arrested, the police failed to file charge sheet and if the petitioners are enlarged on bail, it is difficult to secure their presence during trial as the accused belong to Bihar

State.

6. 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 behalfby 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 severi 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

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(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 pewers 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 @ 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.|

Section 167 (Zjof 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;

(13) 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 ifhe 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 fhunish bails], ;

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

* (2001)5 SCC 453

Ut

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 hberty 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 vetitioners are entitled for statutory

2020 SCC OnLine SC 529

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 /

A-1 and A-2 shall be enlarged on bail in crime No.69 of 2020 of Araku Police Station, Visakhapatnam om 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, Araku, Visakhapatnam District. On such release, the petitioners shall appear before the Station House Officer, Araku Police Station, Visakhapatnam District once in a week between 10.00 AM and 1.00 PM till completion of trial.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

sj. RameshBabu an ASSISTANT REG i STR oe

TRUE COPY! SECTION CHRRICER Fo

To, The Additional District and Sessions Judge-Cum-Special Judge for Trail of NDPS. Act-Case at Visakhapatnam.

The Judicial First Class Magistrate, Araku, Visakhapatnam District. - ; The Superintendent, Central Prison, Visakhapatnam. ~ -- / The Station House Officer, Araku Valley Police Station, Visakhapatnam District, One CC to Sri. Kakumanu Joji Amrutha Raju, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT]

_ One spare copy.

OaRwN >

S a to ~

HIGH COURT

LK,J

DATED: 21/06/2021

ORDER

CRLP.No.2948 of 2021

ALLOWED