Andhra Pradesh High Court - Amravati

Suraj Khara vs Station House Officer on 30 June, 2021

  

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVAT?

WEDNESDAY, THE THIRTIETH DAY OF JUNE, TWO THOUSAND AND TWENTY ONE
: PRESENT :

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRL.P.No. 3152 of 2024
Between:-

1. Suraj Khara, S/o. Arjun Khara
2.Rashmi Ranjan, S/o. Sk. Swain
3.Sridhar Das, S/o. Bendudhar Das.
canes Petitioners/Accused No.2 to 4.

AND

Station House Officer, Butchayyapeta Police Station, Visakhapatnam,
Rep. by the Public Prosecutor, High Court of A.P., Amaravathi.

beees Respondent /Compltainant

Petition filed under Sections 437 & 439 of Cr.P.C. praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to consider the same and release the petitioners on bail in Crime No. 451 of 2020 of Butchayyapeta Police

Station, Visakhapatnam, on such terms and conditions.

The petition coming on for hearing, upon perusing the memorandum of grounds filed in support thereof and upon hearing the arguments of Sri G. Maheswara Rao, Advocate for the Petitioner and of the Asst. Public Prosecutor on behalf of respondent/State, the Court made the following

ORDER :-

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO.3152 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 petitioners/A-2, A-3 and A-4 in connection with Crime No.451 of 2020 of Butchayyapeta Police Station, Visakhapatnam District, for the offence punishable under Section Section 20({b)(ii}(C}) read with Bic} of the Narcotic Drugs and Psychotropic Substances Act, 1985

(for brevity "NDPS Act').

2. The case of prosecution is that on 20.12.2020 on credible information about illegal transportation of ganja, the police rushed to Vaddadi Junction, Ravikamtham Village, Visakhapatnam District, and while conducting vehicle check, they found one Lorry bearing registration No.AP O05 TD 1859 coming from Paderu_ to Visakhapatnam side, On seeing the police, inmates of the vehicle is tried to escape but police apprehended them. On verification of the vehicle, police found 900 Kgs of ganja and seized the same 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 G.Maheswara Rao, learned counsel for the petitioners and the learned Assistant Public Prosecutor for the

respondent-State.

4, Learned counsel for the petitioners/A-2, A-3 and A.4 submits

that the petitioners were falsely implicated in this case and the

contraband that is seized from the possession of the petitioners is 900 kgs. Further, the petitioners were arrested and remanded to judicial custody on 20.12.2020 and since then they have 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 S6(A}) of the NDPS Act. He further submits that as police failed to file charge sheet within 180 days. the

petitioners are entitled for default bail.

5, Learned Assistant Public Prosecutor also does not dispute the fact that no charge sheet is filed in this case and petitioners are languishing in jail from the last 180 days, but police did not file any application seeking extension of time. He further submits that petitioners belong to Odisha, at this Stage, if the petitioners are enlarged on bail, it is difficult for the prosecution to secure their

presence during the course of trial.

6. Section 36{A) of the NDPS Act reads thus:

360A. 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 4 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--

G) 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 1s 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 to 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 sectian;

{a} 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 (ob) 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": Previded 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 summiarily.]

Section 167 (2)of Cr.P.C reads thus:

(2) The Magistrate te 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 's0, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding-

(1) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisorunent for a term of not less than ten years:

{11} 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 XXXII for the purposes of that Chapter: ]

(b) no Magistrate shall authorize detention in any custody under this section unless the accused js 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 1- For the avoidance of doubis, 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 H- 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

' (20015 SCC 453

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 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 fled within the statutory period of 180 days nor any application seeking

extension of time is filed, the petitioners are entitled for statutory

2 9020 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-2, A.3 and A-4 shall be enlarged on bail in Crime No.451 of 2020 of Butchayyapeta Police Station, Visakhapatnam District, on execution of self bond far Ks.6,00,000/- (Rupees six lakhs only) each with two sureties for a like sum each to the satisfaction of the Court of the Judicial First Class Magistrate, Chodavaram, Visakhapatnam, On such release, the petitioners shall not leave the State and they shall appear before the Station House Officer, Butchayyapeta 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.

sd/- G. SRINIVASA REDDY, ASSISTANT REGISTRAR

//TRUE COPY// fy,

for ASSISTANT REGISTRAR To

1.The Metropolitan Sessions Judge-cum-! Additional District & Sessions Judge- Special Judge for Trial of Offences under NDPS Act,

Visakhapatnam. .

2.The Judicial First Class Magistrate, Chodavaram, Visakhapatnam.

3.The Station House Officer, Butchayyapeta Police Station,

Visakhapatnam District. oe Visakhapatnam

4.The Superintendent, Central Prison, Visakha a .

5.Two CCs to the Public Prosecutor, High Court of A.P., at Amaravati(OUT)