Dharmendar A4 vs The State Of Andhra Pradesh
2023 Latest Caselaw 2737 AP

Citation : 2023 Latest Caselaw 2737 AP
Judgement Date : 2 May, 2023

Andhra Pradesh High Court - Amravati

Dharmendar A4 vs The State Of Andhra Pradesh on 2 May, 2023

Bench: B S Bhanumathi

                THE HON'BLE MS JUSTICE B.S.BHANUMATHI


                     Criminal Petition No.2739 of 2023
ORDER:

This Criminal Petition under Sections 437 and 439 of the Code of

Criminal Procedure, 1973 („Cr.P.C‟), is filed by petitioner/A.4, in Crime

No.76 of 2022 dated 19.10.2022 of Moothugudem Police Station, Alluri

Sitharama Raju District, registered for the offence punishable under

Sections 8(c) r/w 20(b)(ii) (C) of N.D.P.S Act.

2. Heard the learned counsel for the petitioner/A.4 and Sri.Soora

Venkata Sainath, the learned Special Assistant Public Prosecutor

representing the respondent/State.

3. The case of the prosecution is that on 19.10.2022, on receipt of

credible information about the illicit possession/transportation of ganja, S.I.

of Police visited Lakkavaram Junction, Chadalawada Panchayati, Chinturu

Mandal and caught red handed A-4 and A-5 while they were found in

possession and transportation of 80 kgs of Ganja in 4 plastic bags in Maruti

Vitara Brezza car bearing No.DL 4 CAX 7942 from Tulasipaka view point at

Haryana state and seized 80 kgs of ganja worth of Rs.2,40,000/-, car, three

touch mobiles and Xerox copies of Aadhar cards of A.4 and A.5 under the

cover of mediators report.

4. The learned counsel for the petitioner submitted that though 185

days elapsed as on today the charge sheet was not filed and therefore the

BSB, J Crl.P.No.2739 of 2023

petitioner is entitled to default bail. He further submitted that this Court

granted bail to A.2 on 21.04.2023 vide Crl.P.No.2165 of 2023.

5. The learned Assistant Public Prosecutor opposed the petition and

submitted that petition under Section 36-A (4) of NDPS Act vide

Crl.M.P.No.802 of 2023 is filed for extension of time for investigation and it

is pending before the Special Court.

6. A perusal of the order in Crl.P.No.2165 of 2023 shows that pendency

of the petition filed under Section 36-A (4) of NDPS Act has not been

brought to the notice of the learned Judge. Therefore, the petitioner

cannot place reliance on the order therein. Crl.M.P.No.802 of 2023 was

filed prior to 17.04.2023 since the date of hearing happened to be 17.4.2023

as per the representation made by the learned Assistant Public Prosecutor

and that so far, no petition under Section 167(2)of Cr.P.C. has been moved

by the petitioner seeking default bail.

7. In the case of M.Ravindran v. The Intelligence Officer, Directorate

of Revenue Intelligence1, after having considered the decisions of the

Supreme Court in several cases, including the decision of the three-Judge

Bench judgments in Rakesh Kumar Paul Vs State of Assam2, the majority

opined that oral request for default bail made by the counsel for the

accused before the High Court would suffice in view of the written

application filed for a regular bail. Further, it is observed in the conclusion

(2021)2 SCC 485

(2017) 15 SCC 67

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at paras 25.2 and 25.3, making a distinction between regular bail

application and the petition seeking default bail as follows:

"25.2 The right to be released on default bail continues to remain enforceable if the Accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. 25.3 However, where the Accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the Accused may still be released on bail under other provisions of the Code of Criminal Procedure."

8. As such, the petitioner can avail the indefeasible right of bail under

Section 167 (2) Cr.P.C., if period is not extended under Section 36-A (4) of

NDPS Act. The said application under Section 36-A (4) of NDPS Act, if filed

before the Special Court, can be heard along with the petition under Section

167(2) Cr.P.C. by the same Court.

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9. In Milliudhan Singh and others Vs The State of Andhra Pradesh3,

this Court, in order dated 04.07.2022, after expiry of statutory period, has

given liberty to the petitioner to file appropriate petition before the

jurisdictional Court.

10. The petitioner was taken into judicial custody on 20.10.2022. Since

the present application is filed under Sections 437 and 439 of Cr.P.C., and