Andhra Pradesh High Court - Amravati

Furkhan Khan vs The State Of Andhra Pradesh, on 27 May, 2021

7 . [ 3240]
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

CRIMINAL PETITION NO: 168 OF 2021

Between:
1. Furkhan Khan, S/o Abdul Aarif Khan, Age 26 year, Driver R/o. Matiyamu Village,
Hardoi District, Uttar Pradesh State.
2. Sufil Khan, S/o Tasim Khan, Age 34 years, Driver, R/o.Matiyamu Village, Hardoi.
District, Uttar Pradesh State.
__.Petitioner/Accused 1&2
AND

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

Andhra Pradesh at Amaravaiti.
...Respondent/Complainant
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 on bail Cr.No.1058 of 2020 on the file 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 memorandum
of grounds of criminal petition and upon hearing the arguments of Sri Kakumanu Joji
Amrutha Raju, Advocate for the Petitioners and Public Prosecutor for the Respondent,

the Court made the following.

ORDER:

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.168 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 petitioners/A-1 & A-2 in connection with Crime No.1058 of 2020 of Narsipatnam Town Police Station, Visakhapatnam District, registered for the offences punishable under Section 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 22.11.2020, on credible information about transportation of Ganja illegally, while the Sub-Inspector of Police, Narsipatnam Town Police Station, along with staff and mediators were conducting vehicle check, they have arrested the petitioners and seized 60 Kgs of dry ganja in four gunny bags (each bag containing 15 Kgs) while transporting the same in a car bearing registration No.UP 30 AE 0707 and produced the petitioners before the Additional Judicial First Class Magistrate, Narsipatnam for remand and were

accordingly remanded on the same day.

3. Heard learned counsel for the petitioners and the learned

Additional Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioners submits that the petitioners were arrested on 22.11.2020 and since then they have been languishing in jail. 180 days have already elapsed.

He further submits that the police have already completed the

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CRLP.No.168 of 2021

investigation, but the police neither filed charge sheet nor made any application seeking extension of time for filing charge sheet. Learned counsel for the petitioners 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 petitioners are 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:

"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:

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CRLP.No.168 of 2021

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,

(o) 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 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 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 (6) 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 3 6. Pp

(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 Jor 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 cus tody as such

Magisirate thinks fit, for a term not exceeding fi ifleen 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 toa Magistrate having such jurisdiction:

'Provided that- . .

(a)! the Magistrate may authorizé 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, -

@ 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 AXXIL for the purposes of that Chapter; ]

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

- 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 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."

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CRLP.No.168 of 2021

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CRLP.No.168 of 2021

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

" (2001)5 SCC 453 7 2020 SCC OnLine SC 529

"6° LK, J CRLP.No.168 of 2021 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 petitioners are 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 shall be enlarged on bail on their executing personal

bonds for Rs.1,00,000/- (Rupees one lakh only) each with two

'sureties each for a like sum: each to the satisfaction of the -

To,

On kwh

Additional Judicial Magistrate of First Class, Narsipatnam, Visakhapatnam District. However, the petitioners shall appear before the Station House Officer, Narsipatnam Town Police

Station, Visakhapatnam on every Saturday and Sunday between

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

shall not leave the State until the trial is completed.

Sd/-T.Madhavi_ ITRUE COPY// ASSISTANT R

EGISTRAR

Qs | .

| SECHION OFFICER

District. .

-The Superintendent, Central Prison, Visakhapatnam.

One CC to Sri. Kakumanu Joji Amrutha Raju, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT] One spare copy

The Additional Judicial First Class Magistrate at Narsipatnam, Visakhapatnam

The Station House Officer, Narsipatnam Town Police Station, Visakhapatnam. /