Rohtash vs The State Of Andhra Pradesh,
2021 Latest Caselaw 4143 AP

Citation : 2021 Latest Caselaw 4143 AP
Judgement Date : 21 October, 2021

Andhra Pradesh High Court - Amravati

Rohtash vs The State Of Andhra Pradesh, on 21 October, 2021

       THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

               CRIMINAL PETITION NO.4822 of 2021

ORDER:-

     This 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/Accused in connection with Crime No.16 of 2021 of

Sileru Police Station, Visakhapatnam District for the offence

punishable under Section 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (for brevity "NDPS Act").

2.   The case of prosecution is that on 12.04.2021 on receipt of

credible information about illegal transportation of ganja, the

Assistant Sub Inspector-1180, Sileru Police Station along with staff

and mediators went to AP GENGO Check post, Sileru Village,

arrested the petitioner and seized 41.850 KGs of ganja in NISSAN

TERRANO gray colour car bearing No.HR 32 G 0089, under the cover

of a mediators report. Basing on the said report, present crime was

registered and sent the accused to judicial custody on the same day.

3.   Heard Sri Medisi Ratna Rao, learned counsel for the petitioner

and learned Assistant Public Prosecutor for the respondent-State.

4. Learned counsel for petitioner submits that it is alleged that a

contraband of 41.850 KGs was seized in this case and petitioner was

arrested on 12.04.2021 and remanded to judicial custody on the

same day and he has been languishing in jail from the last 192 days.

Learned counsel submits that prosecution already filed a petition

seeking extension of time and the same was dismissed on

08.10.2021 and that prosecution has failed to file any revision

assailing the said dismissal order. She submits that as the petitioner

is languishing in jail from the last 192 days and as the extension

petition was dismissed, petitioner is entitled for default bail.

5. Learned Assistant Public Prosecutor submits that for seeking

default bail, petitioner has to file application under Section 167(2)

Cr.P.C before the Court below as per the law laid down by the

Hon'ble Apex Court in M.Ravindran vs. Intelligence Officer,

Directorate of Revenue Intelligence1. He further submits that the

petitioner belongs to Haryana State and if he is enlarged on bail at

this stage, it is very difficult for the prosecution to secure his

presence during the course of trial.

6. Heard the learned counsel on either side and perused the

material on record.

7. It is no doubt true that the Hon'ble Apex Court in

M.Ravindran's case (supra) held that:

"Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have "availed of " or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation. Thus, if the accused applies for bail under Section 167(2) Cr.P.C read with Section 36-A(4) of NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to

(2021) 2 Supreme Court Cases 485

release the accused on bail in case of default by the investigating agency.

The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher court.

However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the Cr.P.C.

8. In view of the judgment of the Hon'ble Apex Court, petitioner

has to file application under Section 167(2) Cr.P.C seeking default

bail. But in the present case already extension petition moved by the

prosecution was dismissed by the Court below and the prosecution

also could not file charge-sheet within the statutory period.

9. In the facts and circumstances of the case, again relegating

the petitioner to the Court below for filing application under Section

167(2) Cr.P.C is not warranted and in the interest of justice, this

Court deems it appropriate to grant bail to the petitioners. However,

on certain conditions.

10. Accordingly, the Criminal Petition is allowed. The petitioner/

Accused shall be enlarged on bail in connection with Crime No.16 of