Andhra Pradesh High Court - Amravati

Vijay Kumar Mourya vs The State Of Andhra Pradesh on 24 June, 2021

 

[3240]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

THURSDAY, THE TWENTY FOURTH DAY OF JUNE,
TWO THOUSAND AND TWENTY ONE

'PRESENT: .
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 2545 OF 2021
Between:

Vijay Kumar Mourya, S/o.Late Ramanadh Mourya, aged about 45 years.
Occ. Coolie Driver, Jamaita Village Shivapur Post, Jounpur District, Uttar Pradesh
Petitioner/Accused=2

AND

The State of Andhra Pradesh, Rep.by its Public Prosecutor,
High Court of Judicature of Andhra Pradesh at Amaravati
Respondent/Compiainant
Petition under Sections 437 & 439 of Cr.P.C, praying that in the circumstances
Stated in the memo of grounds filed herein, the High Court may be pleased to release
the petitioners on bail in Cr.No.1103 of 2020 of Narsipatnam Town Police Station
Visakhapatnam 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 memo of
grounds filed herein and upan hearing the arguments of Sri Kakumanu Joji Amrutha
Raju, Advocate for the Petitioner, and of Public Prosecutor for Respondent, the Cour
made the following

ORDER

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.2545 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 bau to the petitioner/A-2 in connection with Crime No.1103 of 2020 of Narsipatnam Town Police Station, Visakhapatnam District, for the offence punishable under Section Section 8(c) r/w 2O0(b}{ii}(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity

"NDPS Act").

2. The case of prosecution is that on 22.12.2020 on credible information about illegal transportation of ganja, Inspector of Police, Narsipatnam Town Police Station along with his staff and mediators reached Government Degree College on the road leading to Chinthapalli-narsipatnam in Narsipatnam Town and while conducting vehicle check, they arrested the petitioner along with other accused and seized 50 KGs of dry ganja while they were transporting the same in a car bearing registration No.MH 02 BD 1692 under the cover of mediators' report. Basing on the mediators' report, police registered the crime and sent the accused to judicial

custody on the same day.

3. Heard Sri Kakumanu Joji Amrutha Raju, 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

petitioner has not committed any offence as alleged by the

prosecution and nothing is seized from the possession of the petitioner. He further submits that the petitioner is unconnected with the offence alleged and further the goods that are seized are not belong to the petitioner. Further, while conducting search and seizure, police failed to follow the procedure as contemplated under the Act. The petitioner was arrested and remanded to judicial custody on 22.12.2020 and since then he has been languishing in jail. Though 180 days elapsed, the police neither fled charge sheet nor filed any application seeking extension of time as contemplated under Section 36(A) of the NDPS Act. He further subraits that as police failed to file charge sheet within 180 days, the petitioner is

entitled for default bail.

5. Learned Assistant Public Prosecutor submits that entire investigation is completed and they are awaiting for RFSL report. He also not disputed the fact that charge sheet is not filed in this case petitioner is languishing in jail from the last 180 days and police did not file any application seeking extension of time. He further submits that petitioner belongs to Uttar Pradesh, at this Stage, if the petitioner is enlarged on bail, it is difficult for the prosecution to

secure his presence during the course of trial. 8, 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 terrn of more than three years shall be triable only by the Special Court constituted for the area in which the cffence 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 af 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;

{ce} the Special Court may exercise, in relation to the person forwarded ta it under clause (bj), 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;

(dQ) 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 aiso 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 ta "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said periad 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 (2jof Cr.P.C reads thus:

(2) The Magistrate to wham an accused person 1s 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,-

{ij ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not Jess than ten years:

(ui) 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 shali 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 ochalf 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 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 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 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

1 (200135 SCC 453 * 2020 SCC OnLine SC 529

Ta,

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 exterision 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 petitioner/

A-2 shall be enlarged on bail in Crime No.1103 of 2020 of Narsipatnam Town Police Station, Visakhapatnam District on execution of self bonds for Rs.50,000/- (Rupees Fifty thousand only) with two sureties for a like sum each to the satisfaction of the Court of the Judicial First Class Magistrate, Narsipatnam, Visakhapatnam District. On such release, the petitioner shall appear before the Station House Officer, Narsipatnam Town 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,

Sdi-M.Suryanadha Reddy ASSISTANT REGISTRAR ¢ 4 =

HTRUE COPY! SECTION OFFICER

The Additional District and Sessions Judge cum special Judge for Trail of

Narcotic Drugs and psychotropic Substance Act- Case at Visakhapatnam.

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

is &

MOM

The Superintendent, Central Prison, Visakhapatnam The Station House Officer, Narsipatnam Town Police Station, Visakhapainam

Two CCs to Public Prosecutor, High Court of A.P., at Amaravati (OUT) One CC to Sri. Kakumanu Joji Amrutha Raju Advocate [OPUC] One spare copy

HIGH COURT