Andhra Pradesh High Court - Amravati
Lunavath Kalyan vs The State Of Telangana on 20 July, 2022
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION No.4746 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 petitioner/A-2 in connection with
Crime No.9 of 2022 of Yetapaka Police Station, East Godavari
District registered for the offence punishable under Section 8(C)
read with 21(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for brevity "NDPS Act").
2. The case of prosecution is that on 24.01.2022 on receipt of
credible information about illegal transportation of ganja, Sub
Inspector of Police, Yetapaka Police Station conducted raid near
Sand Check Post, Purushothapatnam, Yetapaka Mandal, East
Godavari District and found the petitioner/A2 and A1
transporting 200 KGs Ganja in Maruthi Breeza Car from Sileru
forest area to Solapur of Maharastra, which was supplied to
them by A3. The police caught the petitioner/A2, while A1
escaped without being caught. Basing on the said report, present
crime was registered.
3. Heard Sri Rapolu Bhaskar, learned counsel for petitioner
and learned Special Assistant Public Prosecutor for the
respondent-State.
4. Learned counsel for the petitioner submits that the
petitioner is in judicial custody from the last six months and the
prosecution did not file the charge sheet. Hence, the petitioner
is entitled for default bail.
5. On the other hand, learned Special Assistant Public
Prosecutor submits that the contraband of 200 KGs is seized
from the possession of the accused in this crime and the
petitioner belongs to Telangana State and if he is enlarged on
bail, it is very difficult for the prosecution to secure his presence
during the course of trial. The learned Special Assistant Public
Prosecutor has further contended that petitioner 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
(2001)5 SCC 453
liberty is one of the 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 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 petitioner is 200 KGs, police
failed to file charge sheet within 180 days. As the petitioner is
languishing in jail from the last six months, the petitioner is
entitled for default bail, on certain conditions.
10. Accordingly, this Criminal Petition is allowed. The
petitioner/A-2 shall be enlarged on bail in connection with Crime
No.9 of 2022 of Yetapaka Police Station, East Godavari District,
on executing self bonds for Rs.2,00,000/- (Rupees two lakhs
only) with two sureties for a like sum each to the satisfaction of
the Court of the Judicial First Class Magistrate,
Rampachodavaram, East Godavari District.
(ii) On release, the petitioner shall appear before the Station
House Officer, Yetapaka Police Station, East Godavari District
once in a week i.e. on Sunday between 10.00 AM and 12.00
noon till completion of trial.
(iii) The petitioner shall not interfere with the process of
investigation and shall not tamper the prosecution evidence
(iv) The petitioner shall furnish their mobile phone/landline
numbers and residential addresses as well as that of their
sureties to the I.O./SHO concerned and they shall keep their
mobile/landline phones operational at all times during this period
and in the event of any change of the same, they shall
immediately inform the same to the I.O/SHO.
(v) The petitioner shall drop a pin location on google Maps so
that the location of the petitioner is available to the Investigation
officer.
Further, the petitioner shall scrupulously comply with the
above conditions and any infraction of the same ;will be viewed
seriously and it also entails cancellation of bail and in such case
the prosecution shall move appropriate application for such
cancellation.
___________________________
JUSTICE RAVI CHEEMALAPATI
Date : 20.07.2022
RR
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION No.4746 OF 2022
Date : 20.07.2022
RR
