Andhra Pradesh High Court - Amravati

Manmohan Patel vs State Of Andhra Pradesh, on 6 July, 2022

Bench: Subba Reddy Satti

        THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

              CRIMINAL PETITION No.2910 of 2022

ORDER:

Accused Nos.2 and 3 in Crime No.81 of 2021 of Mothugudem

Police Station, East Godavari District, filed the above criminal

petition under Section 437 and 439 of Code of Criminal Procedure,

1973 (for short "Cr.P.C") seeking regular bail.

2. The case of the prosecution is that Sub Inspector of Police,

Mothugudem Police Station along with staff during vehicle check

on 07.11.2021 at about 4.00 p.m. at Godlagudem village of

Chinturu Mandal, apprehended A-2 to A-6 and seized 1000 Kgs of

Ganja in 40 plastic bags, each containing 25 Kgs, all worth Rs.30

lakhs. The said contraband was being transported in a Lorry

bearing No.UP70 GT 7162 piloted by a Royal Enfield motorcycle

bearing No.AP37 BP 101 and Hero Glamour motorcycle bearing

No.OD30 D 3800. Police seized the vehicles and other material

along with contraband under the cover of mediators report by

following due procedure. A-2 to A-6 were arrested on 07.11.2021

and sent to judicial custody on 08.11.2021. Basing on the same,

the above crime was registered for the offence punishable under

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

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

3. A-2 and A-3 filed application seeking regular bail vide

Crl.M.P.No.2744 of 2021 before the I Additional Sessions Judge,

East Godavari at Rajamahendravaram and the same was

dismissed on 30.11.2021.

4. Heard Sri Chandra Sekhar Ilapakurthi, learned counsel for

petitioners and learned Special Assistant Public Prosecutor for

respondent-State.

5. Learned counsel for petitioners would submit that the

petitioners were arrested on 07.11.2021 and were sent to judicial

custody on 08.11.2021. Since then, they are judicial remand. From

the date of arrest prosecution did not file charge sheet within the

time stipulated as per Sec 36 A (4) of NDPS Act. 180 days time to

file charge sheet was completed by 07.05.2022. application for

grant of bail was filed before Court on 11-4-2022 and pending

same, public prosecutor filed petition seeking extension of time

before the learned Sessions Judge on 21-4-2022. Learned Sessions

Judge by order dated 11.05.2022 in Crl.M.P.No.160 of 2022

extended the time for filing charge sheet for a further period of 60

days from 07.05.2022. He would submit that prosecution filed

petition only to defeat the right of accused under Section 167 (2)

Cr.P.C. He further submits that present application is filed before

this Court on 11.04.2022 and the prosecution filed the petition

seeking extension of time in Crl.M.P.NO.160 of 2022 on

21.04.2022, without disclosing the pendency of bail application

before this Court. Thus, he would contend that since no charge

sheet was filed within 180 days, petitioners are entitled to regular

bail.

6. Learned counsel for petitioner further submits that at the

time of filing application seeking extension of time by the

prosecution, no notice was issued to the accused. He relied on the

judgment of the Hon'ble Apex Court in Sanjay Kumar Kedia Vs.

Intelligence Officer, Narcotic Control Bureau and Ors.1 and

would contend that accused is entitled to notice when an

application is filed by the prosecution seeking extension of time

under proviso to Section 36A (4) of NDPS Act.

7. Learned counsel for petitioner also relied on judgment of the

Hon'ble Apex Court in Rakesh Kumar Paul Vs. State of Assam2

and would submit that petitioner is entitled to default bail under

Section 167 (2) of Cr.P.C., since the charge sheet is not filed within

180 days and he thus prayed to grant bail to the petitioner.

8. Learned Special Assistant Public Prosecutor would submit

that petitioner filed the present application under Sections 437

and 439 of Cr.P.C., for grant of regular bail on 11.04.2021 and the

petitioners were arrested on 07.11.2021. 180 days of time

stipulated under Section 36A (4) of NDPS Act would be completed

by 06.05.2022. He would submit that application seeking

extension of time was filed on 21.04.2022 duly serving notice to A-

2 to A-6 and the counsel appearing for A-2 to A-6 also filed counter

therein and after consideration, learned Sessions Judge by order

dated 11.05.2021 extended time for filing charge sheet by 60 days

from 07.05.2022. He also would submit that no right was accrued

to the accused under Section 167 (2) Cr.P.C., and thus prayed this

Court to dismiss the bail application.

9. I have given my anxious consideration and perused the

material available on record.

(2009) 17 SCC 631

(2017) 15 SCC 67

10. Petitioners/A-2 and A-3 were arrested on 07.11.2021 and

1000 Kgs of contraband was seized from the conscious possession

of A-2 and A-3, who are lorry driver and cleaner. Section 37 of the

NDPS Act regulates the grant of bail in cases involving offences

under the NDPS Act. Section 37 of NDPS Act reads as follows:

"37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) ---

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

11. Under Section 37(1)(b)(ii) of NDPS Act, the limitations qua

grant of bail for offences punishable under Sections 19, 24 or 27A

and also for offences involving a commercial quantity are:

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(ii) There must exist 'reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.

12. The Court while considering the application for bail with

reference to Section 37 of the Act is not called upon to record

about the guilt or otherwise of the accused. It is for the limited

purpose essentially confined to the question of releasing the

accused on bail that the court is called upon to see if there are

reasonable grounds for believing that the accused is not guilty and

records its satisfaction about the existence of such grounds.

13. In Madan Lal Vs. State of Himachal Pradesh3, the Hon'ble

Apex Court held thus:

"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted."

14. In Union of India Vs. Rattan Mallik4, the Hon'ble Apex

Court cancelled the bail of an accused and reversed the finding of

the High Court, which had held that as the contraband (heroin)

was recovered from a specially made cavity above the cabin of a

(2003) 7 SCC 465

(2009) 2 SCC 624

truck, no contraband was found in the "possession" of the

accused. The Court observed that merely making a finding on the

possession of the contraband did not fulfill the parameters of

Section 37(1)(b) and there was non-application of mind by the High

Court.

15. Coming to the facts of the present case, going by the

mediators report, A-2 is driver of the lorry and he confessed before

the police that he along with A-2 went to forest area in

Sukumamidi village, met one Raju and paid Rs.3,00,000/- to him.

The said Raju in turn loaded 1000 Kgs of ganja in 40 bags and he

also requested said Raju to pilot his lorry till Bhadrachalam and

when they reached the above place, police intercepted their vehicle

and when they tried to escape, police arrested and seized the

contraband. The confession statement of A-3 was also recorded

and he also confessed about his accompanying A-2 in lorry, A-2

parting money with him and loading of contraband. Thus, prima

facie, A-2 and A-3 are in conscious possession of contraband.

16. Contention of learned counsel for petitioners is that they

were arrested on 07.11.2021 and 180 days period is completed by

07.05.2022. Since charge sheet was not filed within time as

contemplated under Section 36A(4) of NDPS Act, petitioners are

entitled to statutory bail under Section 167 (2) Cr.P.C. The said

contention falls to ground for the reason that before expiry of 180

days, prosecution filed application on 21-4-2022 in Crl.M.P.No.160

of 2022 on the file of the I Additional Sessions Judge, East

Godavari, Rajamahendravaram, seeking extension of time, by duly

giving notice to A-2 to A-6 and their counsel also filed counter in

the said petition. Though the said application was filed on

21.04.2022, the learned Sessions Judge passed order on

11.05.2022 extending time of 60 days from 07-5-022. By the date

when the said application was filed, 180 days period is not

completed and hence, the petitioners are not entitled for statutory

bail.

17. In Rakesh Kumar Paul's case (supra-2), the Hon'ble Apex

Court held thus:

"78. The law laid down as above shows that the requirement of an application claiming the statutory right under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the appellant never sought default bail before the court concerned, as such not entitled to the same."

18. In Dr.Bipin Shantilal Panchal Vs. State of Gujarat5, a

three Judge Bench decision of the Hon'ble Apex Court, observed

thus:

"In this case, the accused had not made application for enforcement of his right accruing under proviso to Section 167(2) of the Code. But raised the contention only in the Supreme Court. This Court, therefore, formulated the question thus - Whether the accused who was entitled to be released on bail under proviso to sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, and answered in the negative."