Andhra Pradesh High Court - Amravati

Aniruddan Kumar Pandey vs The State Of Andhra Pradesh on 30 June, 2021

WEDNESDAY, THE THIRTIETH DAY OF JUNE,
TWO THOUSAND AND TWENTY ONE
: PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 3331 OF 2021

  

Between:
Aniruddan Kumar Pandey, S/o.Late Veerendranadh Pandey, aged about 24 years, r/o.

Pandeypur village, Shikrarar post, Jounpu District, Uttar Pradesh.

_..Petitioner/Accused-i
AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Judicature of

Andhra Pradesh at Amaravait.
.. .Respondenti(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 petitioners on bail in Cr.No.1103 of 2020 of Narsipatnam
Town Police station Visakhapatnam on the file the Additional District & 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 Joji 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.3331 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.1103 of 2020 of Narsipatnam Town Police Station, Visakhapatnam District, for the offence punishable under Section Section 20(b) {is} (C) read with 8{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, the police rushed to

Government Degree College on the road leading to Chinthapalli-

Narsipatnam in Narsipatnam Town, Visakhapatnam District, and while conducting vehicle check, they found one Car bearing registration No.MH 02 BD 1692 and on verification of the vehicle, police found SO 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 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 nothing to do with the alleged offence and the

petitioner 1s no way concerned with the contraband, which is being

transported in the vehicle. Further, 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 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.

5. Learned Assistant Public Prosecutor submits that entire investigation is completed and they are awaiting for RFSL report. He further submits that police have not filed charge sheet in this case anid petitioner is languishing in jail from the last 180 days, but police did not file any application seeking extension of time. He further He further submits that petitioner belongs to Uttarpradesh, 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 360{A)} of the NDPS Act reads thus:

36A, Offences triable by Special Courts.

(4) 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 mare 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--

() when such person is forwarded to him as aforesaid: or

{a} 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 [email protected] 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 thar 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 Centra] sOvernment 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 chiase

(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,

i4} 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 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 (2)of 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

Mazgistrate 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 dome 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:

(a) 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 X XXIII for the purposes of that Chapter: ]

(b) no Magistrate shall authorize detention in any custody under this section uniess the accused ts produced before him;

(c)} no Magisirate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. | Explanation [.- For the avoidance of doubts. it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shail be detamed in custody so long as be does not furnish bails]. :

Explanation [l.- If any question arises whether an accused person was produced before the Magistrate as required ander 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

1 (2001)5 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 custedy 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 cf 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 petitioner is entitled for statutory bail,

* 2020 SCC OnLine SC 524

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-1 shall be enlarged on bail in Crime No.1103 of 2020 of Narsipatnam Town Police Station, Visakhapatnam District, on execution of self bond for Rs.1,00,000/- (Rupees one lakh only) with two sureties for a like sum each to the satisfaction of the Court of the Judicial First Class Magistrate, Narsipatnam, Visakhapatnam. On such release, the petitioner shall not leave the State and he 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 tii completion of trial.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

Sd/-M.Suryanadha Reddy ASSISTANT REGISTRAR

Se TRUE COPYH wo

To,

The Court of Judicial First Class Magistrate, Narsipatnam, Visakhapatnam

Narcotic Drugs and psychotropic Substance Act- Case at Visakhapatnam The Superintendent, Central Prison, Visakhapatnam .

The Station House Officer, Narsipatnam Town Palice station Visakhapatnam. One CC to Sri Kakumanu Joji Amrutha Raju, Advocate fOPUC]

Two CCs to Public Prosecutor, High Court of Andhra Pradesh.[OUT]

One spare copy

N Ooh &

SECTIORNOFFICER