Andhra Pradesh High Court - Amravati

Karukolu Pavan Kumar, vs The State Of Andhra Pradesh, on 27 May, 2021

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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THURSDAY, THE TWENTY SEVENTH DAY OF MAY,
TWO THOUSAND AND TWENTY ONE

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-PRESENT: i
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI \

CRIMINAL PETITION NO: 3029 OF 2021 Ce

Between: .,
1. Karukolu Pavan Kumar, S/o Ramalingam, aged about 22 years, R/o Thajangi
Chinthapalli Mandal, Visakhapatnam District.
2. Desagiri Manikanta, S/o Devanna, aged about 20 years, R/o Burisingi
Kothapalem Panchayat, Chinthapalli Mandal, Visakhapatnam District.
...Petitioner/Accused No.2 & 3
AND

The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Andhra
Pradesh at Amaravathi.
...Respondent

Petition under Section 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/Accused No.2 & 3 on bail in connection with Crime
No.1038 of 2020, on the file of Narsipatnam Town Police Station, Visakhapatnam

District.

The petition coming on for hearing, upon perusing the Petition and memorandum
of grounds of criminal petition and upon hearing the arguments of Sri T.V.Jaggi Reddy,
Advocate for the Petitioners and Public Prosecutor for the Respondent, the Court made

the following.

ORDER:

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION No.3029 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/A2 and A3 in connection with Crime No.1038 of 2020 of Narsipatnam Town Police Station, Visakhapatnam

- District, registered for the offences 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 prosecution is that on 11.11.2020, at about 8.00 hrs, on receipt of credible information, police of Narsipatnam Town Police Station along with their staff proceeded to Joginadunipalem Junction and arrested the petitioners along with other accused, while they are illegally transporting 1365 kgs. of ganja in 65 bags on two motor cycles bearing NOs.AP 05 BX 5506 and AP 39 FW 7291, Bolera bearing No.AP 31 TK 0402 and also Container bearing No.UP 21 CS 1149. Police seized the said ganja from their possession under the cover of mediators report. Basing on it, police registered a case in Crime No.1038 of 2020 against the petitioners and other accused. The police seized the contraband, arrested the accused and sent

them to judicial custody.

3. Heard learned counsel for the petitioners and the learned

Additional Public Prosecutor for the respondent-State.

4, Learned counsel for the petitioners/A2 and A3 submits that the petitioners are languishing in jail since 11. '1. 2020 and so far the police failed to file charge sheet nor any application seeking extension of time as' "contemplated under Séction 36() of the NDPS

Act, as. such the petitioners are entitled for default bail.

5. 'On 'the 'other hand, learned Additional "Public Prosecutor . submits that the entire investigation i is completed and they are about to file charge sheet. "He further submits that if the petitioners are enlarged on bail. at, "this stage, it- is very "difficult to secure their presence during the course of trial.

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

"36A, Offences triable by Special Courts: (l) Notwithstanding

- anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 7° .

(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;

- 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 cornmitted 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 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, 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 Prosecuter 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), . "fences 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

" @ 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- 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 iong as he does not furnish bail;]. 2

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) 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

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

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

'proceduré 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, 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.

7. Accordingly, this Criminal Petition is allowed. The . petitioners/A2 and A3 shall be enlarged on bail on their executing personal bonds for Rs. 30, 000/- (Rupees fifty thousand only) with two sureties. each for a like. sum each 'to the satisfaction of: the learned Additional Judicial | Magistrate of First Class, | Narsipatnam, Visakhapatnam District. On such release, the 'petitioners/A2 and A3 shall. not leave the State and he shall appear before the Station House Officer, Narsipatnam Police Station, Visakhapatnam District, once in a

month between 10.00 a.m and 01.00 p.m, till completion of trial.

Sd/-T. Madhavi .

TRUE COPY// ASSISTANT RE

STRAR

SECTIO FFICER

. The Metropolitan Sessions Judge, cum 1" Additional District and Sessions

Judge, Special Judge for Tiral of Offences under NDPS Act, Visakhapatnam.

The Superintendent, Central Prison, Visakhapatnam. ) The Station House Officer, Narsipatnam Town Police Station, Visakhapatnam / District.

One CC to Sri. T.V. Jaggi Reddy, Advocate [OPUC]

Two CCs to Public Prosecutor, High Court of AP [OUT]

One spare copy

HIGH COURT