Andhra Pradesh High Court - Amravati

Gandam Suresh. vs The State Of Andhra Pradesh on 23 June, 2021

 

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WEDNESDAY, THE TWENTY THIRD DAY OF JUNE, a
TWO THOUSAND AND TWENTY ONE
: PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO; 1455 OF 2021

   

-

Between:
Gandam Suresh, S/o Parvathi ,Age 32 years,R/o Kapu Veedhi, Rice Mill, Narsipatnam,

Visakhapatnam District
...PetitioneriA.2
AND
The State of Andhra Pradesh, through SHO, Krishna Devi Peta (K.D.Peta) P.S,
Visakhapatnam District, rep by Public Prosecutor, High Court at Amaravati.

.. Respondent

co oo
Petition under Sections 437 & 439 of Cr.P.C, praying that. in the circumstances

stated in the memorandum of grounds filed in the Criminal Petition, the High Court may
be pleased to enlarge the Petitioner/A2 on bail in Crime No.84/2020 on the file of
Krishna Devi Peta (K.D.Peta) P.S Visakhapatnam District.

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
G Venkata Reddy, Advocate for the Petitioner and of Public Prosecutor for the
Respondent, the Court made the following. |

ORDER

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.1455 of 2021 ORDER:-

This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 seeking regular bail to the petitioner/A-2 in connection with Crime No.84 of 2020 of Krishna Devi Peta Police Station, Visakhapatnam District, for the offences punishable under Sections 20(b)({ii}(C), 25 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 15.12.2020 -on receipt of credible information about illegal transportation of ganja, the Sub- Inspector of Police, Krishna Devi Peta Police Station along with his staff and mediators rushed to outskirts of Ramachandrapuram Junction of Gohigonda Mandal and conducted vehicle check, arrested the petitioner/A-2 and seized 90 kgs of Ganja under the cover of mediators' report. Basing on the said mediators' report, police registered the

present crime and sent the petitioner to judicial custody.

3. Heard Sri G. Venkata Reddy, learned counsel for the petitioner

and the learned Assistant Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioner/A-2 submits that the police while conducting search and seizure of the contraband, failed to follow the procedure contemplated under the NDPS Act and the petitioner has not committed any offence as alleged. Learned counsel for the petitioner further submits that the petitioner has been languishing in jail from 16-12-2020 for the last 188 days, so far police failed to file

See ee

charge sheet, as such he is entitled for default bail.

SER PSRETES FESR RUSRIST ERE AES RMR ES SSE PR SEE IEEE ee:

5. On the other hand, learned Assistant Public Prasecutor also does not dispute the fact that the police neither filed application for

extension of time nor filed charge sheet.

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 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

(i) 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.

WEEE Neg

{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 mot 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. LO

(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 (2jof 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,

(2) 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,

(21) 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

@& ee

emIeeeee 2

aust Me nee STEER ATES sere sancelg ananassae tance shawna ane ene AY RSET RE RS

4 \

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 custedy so long as he does not furnish bail]

Explanation If- 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 Mohantal 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 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

' (2001)5 SCC 453 erent 2 9020 SCC OnLine SC 529

POE gs

me aa

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. Taking into consideration of the fact that the petitioner has been languishing in jail from more than 180 days as the police failed to file the charge sheet, the petitioner is entitled for default bail however, on

certain. conditions.

10. Accordingly, this Criminal Petition is allowed. The petitioner /A-2 shall be enlarged on bail in Crime No.84 of 2020 of Krishna Devi Peta Police Station, Visakhapatnam District on execution of self bond for Rs, 1,00,000/- (Rupees one lakh only) with two sureties for a Hike sum each to the satisfaction of the Court of the Additional Judicial

Magistrate of First Class, Narsipatnam, Visakhapatnam District. On

such release, the petitioner shall appear before the Station House

Officer, Krishna Devi Peta Police Station, Visakhapatnam District once

ef MaDe

To,

in a week i.e. on every Saturday between 10.00 AM and 1.00 PM till

completion of trial.

naar oat

Sd/-V.Satyanarayana

NTRUE COPY! Bo SECTION OFFICER

. The Additional Judicial First Class Magistrate, Narasipatnam, Visakhapatnam

District