Pangi Mohana Rao vs Station House Officer
2022 Latest Caselaw 152 AP

                THE HON'BLE SRI JUSTICE D. RAMESH

                CRIMINAL PETITION NO.7539 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-3 in connection with Crime No.91 of 2021 of

Golugonda Police Station, Visakhapatnam District for the offences

under    Sections.20(b)(ii)(c)    r/w     8(c)   of   Narcotic   Drugs    and

Psychotropic Substances Act, 1985 (for short 'NDPS Act').

2.    Heard learned counsel for the petitioner and the learned

Assistant Public Prosecutor for the respondent-State.

3. The case of the prosecution is that on receipt of reliable

information about illegal transportation of Ganja, police reached to

Yetigavirammapeta Village and while conducting vehicle check they

found accused coming with luggage bags. The police stopped them

and seized 25 kgs of ganja under the cover of mediators report.

Basing on the same, the present case is registered.

4. Learned counsel for the petitioner submits that the petitioner

is A-3 in the present crime and no contraband is seized from him.

Only on the basis of the confessional statements made by A-1 and

A-2 the petitioner is implicated in the crime. The petitioner was

arrested on 02.07.2021 and from more than 190 days he has been

languishing in jail. The respondent has not filed charge sheet till

now. Therefore, he is entitled for default bail.

5. Learned Assistant Public Prosecutor submits that the

contraband seized from the petitioner is 25 kgs which is more than a

commercial quantity. Hence, there is a prohibition under Section 37

of NDPS Act for grant of bail. The extension petition filed by them

was dismissed. Hence, in view of the prohibition in the Act, the

petitioner is not entitled for grant of bail.

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

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

(2001)5 SCC 453

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 charge sheet is not filed

within the statutory period of 180 days and further the extension

petition filed by prosecution was dismissed, 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. In view of the facts and circumstances of the case and

considering the submissions of both the learned counsel, this Court

feels that this is a fit case for grant of regular bail to the petitioner by

imposing conditions.

2020 SCC OnLine SC 529

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

A-3 shall be enlarged on bail in connection with Crime No.91 of 2021

of Golugonda Police Station, Visakhapatnam on his executing a bond

for a sum of Rs.1,00,000/- (Rupees One Lakh Only) with two

sureties for a like sum each to the satisfaction of the Judicial First

Class Magistrate Court at Narsipatnam, Visakhapatnam. On such

release, the petitioner shall appear before the Station House Officer,

Golugonda Police Station 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.

_______________ D. RAMESH, J

Date: 17.01.2022 EPS

THE HON'BLE SRI JUSTICE D. RAMESH

CRIMINAL PETITION No.7539 of 2021

17.01.2022

EPS