Andhra Pradesh High Court - Amravati

Manjeti Nageswara Rao vs The State Of Andhra Pradesh on 27 May, 2021

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI »

CRL.P. No. 2469 of 2021
Between:-

Manjeti Nageswara Rao, S/o. Appa Rao.

AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor,
Through SHO, Nathavram PS, Visakhapatnam District,
High Court Buildings, Amaravathi, Guntur District.

bevee 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 petitioner/A1 in connection with Crime NO. 450 of 2020 on the file of Nathavaram Police Station,

Visakhapatnam District, pending investigation and trial.

The petition coming on for hearing, upon perusing the memorandum of grounds filed in support thereof and upon hearing the arguments of Sri K. Srinivas, Advocate for the Petitioner and of the Addl. Public Prosecutor on behalf of respondent No.1/State, the Court made the following

ORDER :-

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.2469 of 2021

. ORDER:

This Criminal Petition is filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking regular bail to the petitioner/A-1 in connection with Crime No.450 of 2020 of Nathavaram Police Station, _ Visakhapatnam District, registered for the offences punishable under Sections 20 (b) (i) (ai), 25 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 13.11.2020, on receipt _of credible information about illegal transportation of Ganja, the Head Constable, Nathavaram Police Station, along with staff and mediators, while conducting vehicle check, arrested the petitioner and seized two bags containing 24 Kgs of dry ganja while transporting the same in an auto bearing registration No.AP 31 TC 9680 seized the same under the cover of mediator's report, arrested and remanded the accused to judicial custody

on the same day.

3. Heard 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 has not committed any offence much less the alleged offence and he has been falsely implicated in the alleged crime. He submits that the petitioner was arrested on 13.11.2020. 180

days have already elapsed. He further submits that the police

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" CRLP.No.2469 of 2021

have already completed the investigation, but the police neither filed charge sheet nor made any application seeking extension of time for filing charge sheet. Learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Tofan Singh vs. State of Tamilnadu in Criminal Appeal No.152 of 2013 and batch wherein it is observed that registration of FIR basing on the confession is bad. Further, as per Section 36A (4) of the NDPS Act, the police have to file the charge sheet within

| 180 days. He submits 'that. in this case neither they have filed any application seeking extension of time nor they have filed

charge sheet. AS 'such, 'the petitioner is entitled for statutory

* bail.

5. Learned Additional Public Prosecutor has not disputed the fact that 180 days time is elapsed and the prosecution failed to file any application seeking extension of time to file charge sheet.

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

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

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CRLP.No.2469 of 2021.

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 ander clause (b), the same power which a Magistrate having jurisdiction to iry 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 jor

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 Prosecutor

indicating the progress of the investigation and the specific reasons for the

yee " a

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a CRLP.No.2469 of 2021

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

Jor 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 Sorwarded 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 deténtion unnecessary, he may order the accused to be forwarded toa Magistrate having such Jurisdiction:

Provided that- . . ne oS

(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 shail authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

@ ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment jor a term of not less than ten years;

(it) 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 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 If.- If any question arises whether an accused person was

produced before the Magistrate as required under paragraph (b), the

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CRLP.No.2469 of 2021

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

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

6) LK, J _-- CRLP.No.2469 of 2021 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 nor any application

_ Seeking extension of time is filed, 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

petitioner/A-1 shall be enlarged on bail on his executing

personal bond for Rs.1,00,000/- (Rupees one lakh only) with -

.two sureties for a like sum each to the satisfaction: of _the

Metropolitan Sessions Judge-cum-I Additional District %& Sessions Judge-Special Judge for trial of Offences under NDPS Act, Visakhapatnam. However, the petitioner/A.1 shall appear before the Station House Officer, Nathavaram Police Station, Visakhapatnam District on every Saturday and Sunday between

10.00 A.M. and 12.00 P.M. till filing of the charge sheet.

COPY// sq/-T.Madhavt_ me ASSISTANT REG . Onn!

ISTRAR

. SECTION OFFICER

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

2.The Station House Officer, Nathavaram Police Station, Visakhapatnam District. a

3.The Superintendent, Central Prison, Visakhapatnam.

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

9.One CC to Sri K. Srinivas, Advocate(OPUC)

6.One spare copy.

TKK

HIGH COURT