Telangana High Court

Karengula Srinivas vs The State Of Telangana on 8 April, 2022

Bench: K.Surender

     HIGH COURT FOR THE STATE OF TELANGANA
                     AT HYDERABAD
                          *****

           Criminal Petition No.7735 OF 2021

Between:

Karengula Srinivas          ... Petitioner/Accused No.3

                          And

The State of Telangana
through Bhadrachalam Town Police
Station rep. by Public Prosecutor.... Respondent.



DATE OF JUDGMENT PRONOUNCED: 08.04.2022

Submitted for approval.


THE HON'BLE SRI JUSTICE K.SURENDER


 1    Whether Reporters of Local
      newspapers may be allowed to            Yes/No
      see the Judgments?

 2    Whether the copies of judgment
      may be marked to Law                    Yes/No
      Reporters/Journals

 3    Whether Their
      Ladyship/Lordship wish to see           Yes/No
      the fair copy of the Judgment?
                                       2

            * THE HON'BLE SRI JUSTICE K.SURENDER


                           + CRL.P. No.7735 of 2021


% Dated 08.04.2022



#Karengula Srinivas                   ... Petitioner/Accused No.3

                                    And

$ The State of Telangana
through Bhadrachalam Town Police
Station rep. by Public Prosecutor.... Respondent.




! Counsel for the Petitioner: Sri J.P.Srikanth


^ Counsel for the Respondent: Learned Public Prosecutor



>HEAD NOTE:



? Cases referred

1. Secial Leave Petition (Crl.) 1834-35 of 1994]

2. AIR 2017 Supreme Court 3948
                                3

 HONOURABLE SRI JUSTICE K.SURENDER

          CRIMINAL PETITION No. 7735 OF 2021

O R D E R:

This criminal petition is filed under Sections 437

and 439 of the Code of Criminal Procedure, 1973 (for

short "Cr.P.C.") seeking enlargement of the

petitioner/Accused No.3 in Crime No.375 of 2021 on the

file of the Station House Officer, Bhadrachalam Town

Police Station, Bhadradri Kothagudem, registered for the

offence punishable under Section 8(c) r/w Section 20(b)

of the Narcotic Drugs and Psychotropic Substances Act,

1985 (for short 'the NDPS Act').

2. Heard Sri J.P.Srikanth, learned counsel for the

petitioner and learned Assistant Public Prosecutor for the

respondent-State and perused the record.

3. The facts of the case are that the petitioner is

Accused No.3 in Crime No.375 of 2021 on the file of the

Station House Officer, Bhadrachalam Town Police

Station, Bhadradri Kothagudem, registered for the

offence punishable under Section 8(c) r/w Section 20(b)

of the NDPS Act. The case of the prosecution is that on

11.09.2021, the Bhadrachalam Town Police, while

conducting search at the forest check post, stopped the

car in which A1 to A3 were traveling and found 48 kgs of

dry Ganja in the said car. A1 and A2 allegedly confessed

that the same was purchased from A4 and A5 on the

instructions of A6 and A7 at Dharakonda. The Police

conducted panchanama and seized contraband of 48 kgs

of Ganja. The petitioner/A3 was arrested and sent to

judicial custody on 11.09.2021.

4. The only ground urged by the petitioner/A3 is that

during the pendency of the present criminal petition, the

mandatory period of 180 days expired and charge sheet

was not filed, as such, he is entitled for statutory bail as

contemplated under Section 167(2) of Cr.P.c. He further

submits that the Police, Bhadrachalam filed petition

under Section 36-A(4) of the Act of 1985, seeking

extension of time for completion of investigation.

Accordingly, the I Additional Sessions Judge, Khammam,

by an order dated 15.03.2022 in Crl.M.P.No.220 of 2022

in the above crime, extended the period for completion of

investigation by 180 days. However, the mandatory

period of 180 days from 11.09.2021 expired on

09.03.2022 and the order granting further 180 days for

completion of investigation was made on 15.03.2022,

which is 186th day. In support of his contention, he

relied on the order of this Court in Crl.P.No.8157 of 2021,

dated 11.03.2022.

5. On the other hand, learned Assistant Public

Prosecutor submits that the application under Section

36-A(4) of the Act was made by the police on 178th day

itself. However, the Court failed to pass orders and

subsequently the orders came to be passed on

15.03.2022. For the said reason, the time is deemed to

be extended and the right of bail under Section 167(2) of

Cr.P.C will not accrue to the petitioner/Accused No.3.

6. For the sake of convenience, Clause (4) of Section

36-A of the Act of 1985 reads as follows:

"36-A. Offences triable by Special Courts: (1)(a)(b)(c ) &(d)....

(2)....

(3)...

(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 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."

7. A perusal of the aforesaid provision, the concerned

court can extend time for a period up to one year when

the Public Prosecutor indicates the progress of

investigation and give reasons for the detention of the

accused beyond 180 days.

8. Admittedly, the order of the trial Court came to be

passed on 15.03.2022, which is 186th day. In Sanjay

Dutt vs State Through C.B.I. Bombay [Special Leave

Petition (Crl.) 1834-35 of 1994], the Hon'ble Supreme

Court held that the right of statutory bail under Section

167(2)Cr.P.C is an indefeasible right.

9. The Hon'ble Supreme Court in a case of Rakesh

Kumar Paul v. State of Assam1, held as follows:

"102. It has been urged that the accused is charged with very serious offences and, therefore, he should not be released on bail. We are dealing with 'default bail'. There is no discretion in such matters. At times like this, it would be prudent to remind ourselves of what was said by Benjamin Franklin more than two centuries ago:

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both".

Section 36-A(4) of the Act of 1985 creates an

indefeasible right of bail in the cases involving

commercial quantity, if the charge sheet is not filed

within one hundred and eighty days. It is for the

prosecution to seek orders extending time for the purpose

of investigation, which in turn extends the time of

detention of the accused within the stipulated time of one

hundred and eighty days, as mentioned under proviso to

AIR 2017 Supreme Court 3948

Section 36-A(4) of the Act of 1985. There cannot be any

discretion when the statute creates the right accrued to

an accused to be released on bail and that pendency of

application seeking extension of time cannot be a ground

to dispense with the grant of bail after statutory period of

one hundred and eighty days. Unless orders are passed

within the mandatory period of one hundred and eighty

days, the accused shall have the right to be released on

bail. For the said reason, in the absence of charge sheet

being filed within 180 days nor an order by the concerned

court extending extension of time to the investigating

agency to complete investigation, there is no alternative,

but to release the petitioner/A3 on bail.

For the aforementioned reasons, the petitioner is

directed to be released on bail on his executing a

personal bond for Rs.50,000/- with two sureties for the

likesum each to the satisfaction of Special Sessions

Judge for the Trial of Cases under Narcotic Drugs and

Psychotropic Substances Act-cum-I Additional Sessions

Judge, at Khammam District. Further, the petitioner

shall report before the Bhadrachalam Town Police Station

on every Sunday between 10.00 A.M to 5.00 P.M for a

period of three (3) months or till filing of the charge sheet.

The petitioner/Accused No.3 shall abide by the other

conditions stipulated in Section 437(3) of Cr.P.C.

As a sequel thereto, miscellaneous petitions, if any,

shall stand closed.

10. It is seen in number of cases that the Magistrates

of the Special Courts where the accused are remanded,

are refusing to entertain petitions filed under Section

167(2) of Cr.P.C on the ground that bail application/(s)

is/are pending in the competent court(s).

11. In an application under Sections 437 and 439 of

Cr.P.C before the competent court, it is the discretion of

the said Court either to grant or refuse bail. However,

the accused has indefeasible right of being released on

bail, if charge sheet is not filed within 60/90/180 days,

as the case may be, and no extension of time is sought by

police as required by Statute. When it is the right of the

accused to be released on bail, the courts cannot refuse

petition filed under Section 167(2) Cr.P.C on the ground

of pendency of bail petition before any other competent

court and the same would amount to declining the

accused his/her right of being released and prolong the

detention, which is illegal.

12. The Hon'ble Supreme Court Rakesh Kumar Paul

(supra), held as follows:

"111. The right to get 'default bail' is a very important right. Ours is a country where millions of our countrymen are totally illiterate and not aware of their rights. A Constitution Bench of this Court in the case of Sanjay Dutt (supra) has held that the accused must apply for grant of 'default bail'. As far as Section 167 of the Code is concerned, Explanation I to Section 167 provides that notwithstanding the expiry of the period specified (i.e. 60 days or 90 days, as the case may be), the accused can be detained in custody so long as he does not furnish bail. Explanation I to Section 167 of the Code reads as follows:

"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." This would, in my opinion, mean that even though the period had expired, the accused would be deemed to be in legal custody till he does not furnish bail. The requirement is of furnishing of bail. The accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since

60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail. This indefeasible right cannot be defeated by filing the charge-sheet after the accused has offered to furnish bail.

112. This Court in a large number of judgments has held that the right to legal aid is also a fundamental right. Legal aid has to be competent legal aid and, therefore, it is the duty of the counsel representing the accused whether they are paid counsel or legal aid counsel to inform the accused that on the expiry of the statutory period of 60/90 days, they are entitled to 'default bail'. In my view, the magistrate should also not encourage wrongful detention and must inform the accused of his right. In case the accused still does not want to exercise his right then he shall remain in custody but if he chooses to exercise his right and is willing to furnish bail he must be enlarged on bail."

13. It is not only the duty of the court to enforce the

right of the accused to be released of bail but also that

the accused should be made aware of his/her statutory

right. The Courts will not in any manner be burdened, if

the right of the accused is informed, when the accused is

produced and before sending such accused to judicial

remand.

14. In view of the observations of the Hon'ble

Supreme Court in Rakesh Kumar Paul (Supra), the

following shall be scrupulously followed by the Courts

i.e., both the Magistrate Courts as well as the Special

Courts where the accused are remanded on production