Vikesh Kumar vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3843 AP

       THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

               CRIMINAL PETITION NO.4671 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/A-1 in connection with Crime No.183 of 2021 of

Narsipatnam Prohibition & Excise Station, Visakhapatnam District,

for the offence punishable under Section 8(c) r/w 20(b)(ii)(C) and 25

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

brevity "NDPS Act").

2.    The   case    of   prosecution   is   that   on   03.04.2021,   the

Enforcement Inspector, Special Enforcement Bureau, Narsipatnam

received credible information about transportation of Ganja illegally,

secured the staff, mediators and went to Srikanya theatre junction of

Narsipatnam and while checking the vehicles, at about, 6:00 A.M.,

arrested the Accused and seized 72 kgs of dry Ganja in two gunny

bags while transporting the same in Ford Fiesta Car bearing

Registration No.BR-01-AR-9407 under the cover of mediators report.

Basing on the said report, the present crime is registered.

3.    Heard Sri Kakumanu Joji Amrutha Raju, 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 72

kgs of dry Ganja is seized from the possession of the Accused and

they were arrested and remanded to judicial custody on 03.04.2021

and from the last 180 days, they are languishing in jail. He submits

that while conducting search and seizure the police failed to follow

the procedure contemplated under the provisions of the NDPS Act.

5. Learned Assistant Public Prosecutor submits that the entire

investigation is completed and the police are about the file the charge

sheet. He submits that petitioner/A-1 belongs to Bihar 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. Section 36(A) of the NDPS Act reads thus:

36A. Offences triable by Special Courts.--

(1) 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 sub- section (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 cluase

(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 27A 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 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.]

7. 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- section shall be deemed to be so released under the provisions of Chapter XXXIII 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 bail;]. 2 Explanation II.- 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."

8. The Hon‟ble Apex Court in the case of Uday Mohanlal

Acharya v.State of Maharashtra1 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

(2001)5 SCC 453

Article 21 of the Constitution of India and the Hon‟ble Apex Court in

recent judgment in S.Kasi v. State2 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

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.

9. In view of the foregoing reasons as the entire investigation is

complete and the police is about to file the charge sheet and so far

there is nothing forthcoming to show that the petitioner is a habitual

offender, 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.

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

A-1 shall be enlarged on bail in connection with Crime No.183 of

2021 of Narsipatnam Prohibition & Excise Station, Visakhapatnam

2020 SCC OnLine SC 529

District on executing self bond for Rs.1,00,000/- (Rupees One lakh

only) with two sureties for a like sum each to the satisfaction of the

Court of the Judicial First Class Magistrate, Narsipatnam,

Visakhapatnam District. On such release, the petitioner shall not

leave the state and he shall appear before the Station House Officer,

Narsipatnam Prohibition & Excise Station, Visakhapatnam District

once in a week i.e. on every Saturday between 10.00 AM and 1.00

PM, till completion of trial.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

___________________________ LALITHA KANNEGANTI, J

Date: 30.09.2021 EPS

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

(Allowed)

CRIMINAL PETITION No.4671 of 2021

Date: 30.09.2021

EPS