Andhra Pradesh High Court - Amravati

Arjun Lal Mali vs State Of Ap on 2 March, 2021

Bench: Lalitha Kanneganti

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®% es N THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI ZOE AND.
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> TUESDAY, THE SECOND DAY OF MARCH,
TWO THOUSAND AND TWENTY ONE

: PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 1201 OF 2021

 

Between:

Arjun Lal Mali, S/o. Late Khem Raj Shaini, Aged about 27 years, Mali by Caste,
Cultivation, R/o. Tej Chowk, Bagore Village, Tahsil Mandal, Bhilwara District, Rajasthan
State.
...Petitioner/Accused-1
AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Judicature of
Andhra Pradesh at Amaravathi.

...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 enlarge the petitioners/accused No.A1 on bail in Crime No.1004/2020 on
the file of Chodavaram P.S., Visakhapatnam District.

The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and upon hearing the arguments of Sri Medisi Ratna Rao,
Advocate for the Petitioner and of Public Prosecutor for the Respondent, the Court
made the following.

ORDER

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.1201 of 2021 ORDER:

This Criminal 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.1004 of 2020 of Chodavaram Police Station, Visakhapatnam District registered for the offence punishable under Sections 20 (b) (ii) (C) read with Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

brevity "NDPS Act").

2. The case of the prosecution is that on 26.08.2020 on credible information about the illegal transportation of ganja, the police while conducting vehicle check at Venkampalem Junction of Chodavaram Mandal, they arrested the accused and seized 50 KGs of ganja while they were transporting the same in Hyundai Accent Car bearing No.RJ 149 C 1724. The police seized the contraband, arrested the accused, registered the

crime and sent the accused to judicial custody.

3. Heard Sri Medisi Ratna Rao, learned counsel for the petitioner and the learned Additional Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner/A-1 submits that the petitioner is languishing in jail from the last 186 days, so far the police failed to file charge sheet nor any application seeking extension of time as contemplated under Section 36(A) of the

NDPS Act, as such he is entitled for default bail.

S. On the other hand, learned Additional Public Prosecutor submits that the entire investigation is completed and they are about to file charge sheet. He further submits that the petitioner belongs to Rajasthan State and if he is enlarged on bail at this

Stage, it is very difficult to secure his presence during the course

of trial.

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

(ij) 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 authorised 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 (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 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 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,-

(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;

(i) 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 AXXITH for the Purposes of that Chapter;]

(8) no Magistrate shall authorize detention in any custody under this Section unless the accused is produced before him;

(¢) 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 I.- 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 Surnish bail,].?

Explanation I]. - Lf 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 the case of Uday Mohanlal Acharya v.State of Maharashtra! has observed that personal liberty is one of 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 up to 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, it could be violative of Article 21

of the Constitution of India and the Hon'ble Apex Court in

' (2001)5 SCC 453

recent judgment in S.Kasi v. State? wherein it was observed that the indefeasible right to default bail under Section 167 (2) Cr.P.C. is an integral part of the right to personal liberty under Article 21 of the Constitution, 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 filed within the statutory period of 180 days, 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-1 shall be enlarged on bail on executing self bonds for Rs.50,000/- (Rupees fifty thousand only) each with two sureties for a like sum each to the satisfaction of the Court of

the Additional Judicial First Class Magistrate, Chodavaram,

2.99020 SCC OnLine SC 529

{t) 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,]

(®) 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;].?

Explanation IL.- 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 the case of Uday Mohanlal Acharya v.State of Maharashtra! has observed that personal liberty is one of 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 up to 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, it could be violative of Article 21

of the Constitution of India and the Hon'ble Apex Court in

' (2001)5 SCC 453

To,

QAnkwn>

Visakhapatnam District. On such release, the petitioner shall not leave the state and he shall appear before the Station House Officer, Chodavaram Police Station, Visakhapatnam once in a

month between 10.00 AM and 1.00 PM, till completion of trial.

Sd/-T.Madhavi ASSISTANT

[ITRUE COPY// L SECTION OFFICER

The Addl. Judicial First Class Magistrate Court, Chodavaram.

The Superintendent, Central Jail, Visakhapatnam.

The Station House Officer, Chodavaram P.S., Visakhapatnam District. One CC to Sri Medisi Ratna Rao, Advocate [OPUC]

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

~ HIGH COURT

LKJ

DATED: 02/03/2021

ORDER CRLP.No.1201 of 2021

DIRECTION