Andhra Pradesh High Court - Amravati
Irfan Ali, vs The State Of A.P, on 18 July, 2022
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION No.4032 OF 2022
ORDER:-
This Criminal 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 petitioners/A-1 and A-4 in connection
with Crime No.7 of 2022 of K.D.Peta Police Station,
Visakhapatnam District registered for the offence punishable
under Section 20(b)(ii)(C) read with 8(c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for brevity "NDPS
Act").
2. The case of prosecution is that on 19.01.2022 on receipt of
credible information about illegal transportation of ganja, Sub
Inspector of Police, K.D.Peta Police Station along with staff and
mediators rushed to Alluri Park, A.L.Puram Village of Golugonda
Mandal and while checking the vehicles, they found the
petitioners and seized 270 KGs of ganja under the cover of a
mediators report. Basing on the said report, present crime was
registered.
3. Heard Sri M.Vinodin Ruth, learned counsel for petitioners
and learned Special Assistant Public Prosecutor for the
respondent-State.
4. Learned counsel for the petitioners submits that the
petitioners are in judicial custody from the last six months and
the prosecution did not file the charge sheet. Hence, the
petitioners are entitled for default bail.
5. On the other hand, learned Special Assistant Public
Prosecutor submits that the contraband of 270 KGs is seized
from the possession of the accused in this crime and they belong
to Delhi and Uttar Pradesh State and if they are enlarged on bail,
it is very difficult for the prosecution to secure their presence
during the course of trial. The learned Special Assistant Public
Prosecutor has further contended that petitioners can approach
the trial Court for default bail. Hence, prayed to dismiss the bail
petition.
6. Thus, taking into consideration the submissions made by
both the counsel and facts and circumstances of the case, it is
appropriate to extract the provisions applicable to the facts of
the present case.
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 authorized 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 case of Uday Mohanlal
Acharya v.State of Maharashtra1 has observed that personal
liberty is one of the cherished objects of the Indian Constitution
(2001)5 SCC 453
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 upto 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, could be violative of 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) is an
integral part of the right to personal liberty under Article 21, 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.
2020 SCC OnLine SC 529
9. Taking into consideration the fact that though the
contraband that is seized from the petitioners is 270 KGs, police
failed to file charge sheet within 180 days. As the petitioners are
languishing in jail from the last six months, the petitioners are
entitled for default bail, on certain conditions.
10. Accordingly, this Criminal Petition is allowed. The
petitioners/A-1 to A-4 shall be enlarged on bail in connection
with Crime No.7 of 2022 of K.D.Peta Police Station,
Visakhapatnam District, on executing self bonds for
Rs.3,00,000/- (Rupees three lakhs only) with two sureties for a
like sum each to the satisfaction of the Court of the Additional
Judicial First Class Magistrate, Narsipatnam, Visakhapatnam
District. On such release, the petitioners shall appear before the
Station House Officer, K.D.Peta Police Station, Visakhapatnam
District once in a week between 10.00 AM and 1.00 PM till
completion of trial.
___________________________
JUSTICE RAVI CHEEMALAPATI
Date : 18.07.2022
SPP
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION No.4032 OF 2022
Date : 18.07.2022
SPP
