Andhra Pradesh High Court - Amravati

Jayvind Kumar vs The State Of Andhra Pradesh, on 9 March, 2021

Bench: Lalitha Kanneganti

 
 
 
  

IN THE HIGH COURT OF ANDHRA PRADESH AT [email protected]

4
TUESDAY, THE NINTH DAY OF MARCH, TWO THOUSAND AND TWENTY ONR 2

: PRESENT :
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

va

CRL.P.No. 475 0f 2021
Between:-

1.Jayvind Kumar, S/o. Madhu Ray (Driver of Lorry Bearing No.BR25G9711).
2.Chenarik Sahu, S/o. Late Bhulleten Sahu

(\) Driver of Lorry Bearing No.BR25G9711).
3.Vinodh Ray, S/o. Naveen Ray, Helper. .
beees Petitioners/Accused.
AND

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

be eee Respondent/Complainant.

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 release the petitioners on bail in Cr.No.
163 of 2020 of Bhogapuram Police Station on the file of the Additional
District & Sessions Judge-cum-Special Judge for Trial of Narcotic Drugs and

Psychotropic Substance Act- case-at Vizianagaram.

The petition coming on for hearing, upon perusing 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 the
Addl. Public Prosecutor on behalf of respondent/ State, the Court made the
following

ORDER :-
 

 

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.475 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 petitioners/Accused in connection with Crime No.163 of 2020 of Bhogapuram Police Station, Vizianagaram District, registered for the offences punishable under Section 8 (c) read with Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity

"NDPS Act").

2. The case of prosecution is that on 12.08.2020, on receipt of credible information about illegal possession and transportation of Ganja, the Sub-Inspector of Police, Bhogapuram Police Station, on securing the presence of mediators and a Gazetted Officer, rushed to Sundarapeta bridge NJ at about 18.00 hours and conducted vehicle checking. While conducting vehicle checking, they noticed one lorry bearing No.BR-25-G-9711 coming from Visakhapatnam _ side to Srikakulam side and on suspicion, they stopped the lorry and found three persons in the lorry including driver. On interrogation, they disclosed that they are transporting ganja in the lorry and on verification, the police found 175 packets wrapped in brown coloured tape total weighting about 500kgs of ganja and seized the same under the cover of mediator's report.

Basing on the mediator's report, the present crime is registered.

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The petitioners were arrested on 12.08.2020 and remanded to

judicial custody.

3. Heard Sri Kakumanu Joji Amrutha Raju, learned counsel for the petitioners and the learned Additional Public Prosecutor

for the respondent-State.

4. Learned counsel for the petitioners/Accused submits that the petitioners have not committed any offence much less the alleged offences and the petitioners have nothing to do with the alleged seizure of contraband from their possession. He submits that the petitioners were arrested on 12.08.2020 and they have been languishing in jail for the last 209 days. He submits that as per Section 36A (4) of the NDPS Act, the police have to file the charge sheet within 180 days. In this case, the police neither filed any application seeking extension of time nor filed charge

sheet. As such, the petitioners are entitled for statutory bail.

5. Learned Additional Public Prosecutor does not dispute the fact that the police failed to file charge sheet within 180 days nor made any application seeking extension of time. However, he submits that huge quantity of 500 Kgs of ganja has been seized from the possession of the petitioners. He submits that the investigation is still pending. As all the petitioners belong to Bihar State, if they released on bail, it is very difficult for the prosecution to secure their presence during trial. Hence, the petitioners are not entitled for grant of bail.

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

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CRLP.No.475 of 2021

"36A. Offences triable by Special Courts: (J) 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 subsection (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 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 clause (b) of sub-section (1) of that

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CRLP.No.475 of 2021

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 27 A 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,

shail 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;

(ii) 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-

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CRLP.No.475 of 2021

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 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 furnish hail;].?

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."

7. 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 recent judgment in S.Kasi v. State? wherein it was observed

that the indefeasible right to default bail under Section 167 (2)

' (2001)5 SCC 453 ? 2020 SCC OnLine SC 529

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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.

8, In view of the foregoing reasons, as the charge sheet is not filed within the statutory period of 180 days as contemplated under Section 36A (4) of the NDPS Act, 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.

9, Accordingly, this Criminal Petition is allowed. The petitioners/Accused shall be enlarged on bail on their executing personal bond for Rs.5,00,000/- (Rupees five lakhs only) with two sureties each for a like sum each to the satisfaction of the Judicial Magistrate of First Class, (PDM), Vizianagaram, Vizianagaram District. However, the petitioners/accused shall

not leave the State and they shall appear before the Station

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CRLP.No.475 of 2021

House Officer, Bhogapuram Police Station, Vizianagaram District twice in a month on Thursday and Sunday between

10.00 A.M. and 1.00 P.M. till the trial is completed.

10. This Court observed that even in cases where huge quantity of contraband is seized, the police are not vigilant in conducting investigation and filing charge sheet within 180 days. They are not even seeking extension of time for filing charge sheet, as such, this Court in several cases granting bail to the accused as they are entitled for default bail. In these type of grave offences, the police are not expected to act in such a negligent manner. The Director General of Police shall take appropriate steps and issue guidelines to the Investigating Officer, wherever it is found that the police failed to seek extension of time for filing the charge sheet and any other lapses

appropriate action shall be initiated.

The Registry is directed to communicate a copy of the

order to the Director General of Police, Andhra Pradesh.

U. SRIDEVI ASSISTANT REGIS R //TRUE COPY//

cc for SECTION OFFICER

1.The Additional District & Sessions Judge-cum-Special Judge for Trial of

Narcotic Drugs and Psychotropic Substance ACT sate at Vizianagaram.

2.The Judicial Magistrate of First Class,.(PDM), Vizianagaram,

Vizianagaram District. 7 ' _

3.The Director General of Police, Mangalagiri, Guntur District. "

4.The Station House Officer, Bhogapuram Police Station, ~

Vizianagaram District. . L