Andhra Pradesh High Court - Amravati

Mohammad Sajid Shabbir vs The State Of Andhra Pradesh on 24 June, 2021

 

  
 
  

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA'

THURSDAY, THE TWENTY FOURTH DAY OF JUNE, ©

TWO THOUSAND AND TWENTY ONE

'PRESENT: :

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTK

CRIMINAL PETITION NO: 373 OF 2021 .

Between:

Mohammad Sajid Shabbir, S/o. Shabbir Mirza late, R/o. Door No.161, Jogabhai
Extention, Jamia Nagar, Jamia Nagar Police Station Delhi(South Delhi)

, Petitioner/Accused -1

AND

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

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 release the petitioner on bail in Cr.No.454 of 2020 of Dwaraka Palice
Station Visakhapatnam on the file of the Additional District and Sessions Judge- Gum-
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
M/s. Kakumanu Jo}i Amrutha Raju, 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.372 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 in connection with Crime No.454 of 2020 of Dwaraka Police Station, Visakhapatnam District, for the offence punishable under Section Section 8{c) r/w 20(b}{ii}(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS

Act").

2. The case of prosecution is that on 23.12.2020 on credible information about Wegal transportation of ganja, the Inspector of Police, Dwaraka Police Station along with his staff and mediators reached Gurudwar Bus Stop on NH-16 road, arrested the petitioner and seized 30 KGs of dry ganja 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-1 submits that the petitioner has not committed any offence as alleged by the prosecution and if the allegations are taken on its face value, they do not constitute the alleged offence. He further submits that nothing

has been seized from the possession of the petitioner. When the

petitioner is travelling ta Hyderabad, police apprehended the

petitioner and the seized suitcase was not belong to the petitioner. Further, the petitioner was arrested and remanded to judicial custody on 23.12.2020 and since then he has been languishing in jail. Though 186 days elapsed, the police neither filed charge sheet nor filed any application seeking extension of time as contemplated under Section 36(A) of the NDPS Act. He further submits that as police failed to file charge sheet within 180 days, the petitioner is

entitled for default bail.

2. 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 filed in this case and petitioner is languishing in jail from the last 180 days, but police did not file any application seeking extension of time. He further submits that petitioner belongs to South Delhi, 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 6, Section 36(A) of the NDPS Act reads thus:

364. Offences triable by Special Courts.----

{1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)1,--

fa) all offences under this Act which are punishable with imprisoriment 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 he 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 i147 of the Code of Criminal Procedure, 1973 (2 of 1974}, such Magistrate may authorise the detention of such person in such custedy 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--

@) 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 use {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 am 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 shail 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 Frocedure, 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.

{S) 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 (2jot Cr.P.C reads thus:

(2) The Magistrate to whom an accused person is forwarded under this

section may, whether he has or has noi jaxisdiction 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 4 Magistrate having sach jurisdiction:

Provided that-

(ay!

the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fitteen 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 tota! period exceeding,-

() ninety days, where the investigation relates to an offence punishable

with death, imprisonment for life er imprisonment for a term of not less than

uj} 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 XX XIII for the purposes of that Chapter: ]}

(>) 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 furnish bail:]. 2

Explanation U.- ff 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.

&, 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

* 200195 SCC 453

EPI

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 ease 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 petitioner is entitled for statutory bau,

* 9020 SCC OnLine SC 529

which is an indefeasible right of the accused as laid down by the

Horvble Apex Court in catena of cases.

10. Accerdingly, this Criminal Petition is allowed. The petitioner / A-] shall be enlarged on bail in Crime No.454 of 2020 of Dwaraka 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 If Additional Chief

Metropolitan Magistrate, Visakhapatnam... On such release, the petitioner shall appear before the Station House Officer, Dwaraka 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,

vom |

SD/- CHITTI JOSEPH . |

}

ASSISTANT REGISTRAR

Peek

TRUE COPY/! SECTION SEFICER

cee ee eR AE POPES

_ The tl Additional Chief Metropolitan Magistrate, Visakhapatnam.

1 . *

2. The Additional District and Sessions Judge- Cum- Special Judge for Trail of