Andhra Pradesh High Court - Amravati
Ravi Ashurba Gaikward vs The State Of Ap on 20 July, 2021
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA
TUESDAY, THE TWENTIETH DAY OF JULY
TWO THOUSAND AND TWENTY ONE
:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 3428 OF 2021
Between:
1.
2,
(A1)Ravi Ashurba Gaikward, S/o Asurba Gaikward. Aged 29 Years R/o. Near
Samajmandir, Bhimnagar, Parbhani, Maharasta State-430401.
(A2)Naghath Ashurba Gaikwward, S/o Shroba Gaikward, Aged 29 years/ R/o.
near Samaj Mandir, Bhimnagar, Parbhani Maharasta State-430401.
(A3)Dharmendra Kumar @ Salman Ansari, S/o Laichand @ Usman Ansari, Aged
24 years Rfo Near Samaj Mandir, Bhimanagar Parbhani, Maharashtra State-
431401 N/o Arjunpur Gram Post Nivigaharar, Nibi Gahanwar, Bijapur, Mirzapur,
Uttar Pradesh-231303.
(A4)Suhaila Parmeshwar Kasabe, W/o Parmeshwar kesave Aged 30 years R/o
Near samaj Mandir Bhimnagar, parbhani. Maharashtra State 431401.
(AS)Varsha Vithoba Kasabe, VV/o vkhoba kasabe Aged 32 years R/o Lahiji nagar
zopadpatti Behind Police Chawki Monone aAmbivalli, Ambivali Tarf Chon, Thane
Maharashtra State-421102.
{(A6)Anil Sunani, S/o Dileep Sunani Aged 23 years R/o. Padiabahal, Sambalpur,
Odisha State-7881 12.
«wo Petitioners/A-1 to A-6
AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of
Judicature of Andhra Pradesh at Amaravati,
... Respondent/Complainant
Petition under Sections 437 and 439 of Cr.P.C, praying that in the circumstances
stated in the grounds filed the Criminal Petition, the High Court may be pleased to
release the petitioners on bail in NDPS SC. No. of 2027 on Cr.No.32/2021 Duvwvada
Police Station registered U/s 20 (b)} (i)(B) (C)r/w 8 (c) of NDPS Act.
The petition coming on for hearing, upon perusing the Petition and the grounds
filed in support thereof and upon hearing the arguments of Sri Medisi Ratna Rao
Advocate for the Petitioners and of Public Prosecutor for the Respondent, the Court
made the following.
ORDER:
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.3428 of 2021 ORDER:-
This 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 to A.6 in connection with Crime No.32 of 2021 of Duvvada Police Station, Visakhapatnam, registered for the offences punishable under Sections 8(c}, 20(b}(i}, 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act").
2. The case of prosecution is that on 21.01.2021, the Inspector of Police, Duvvada Police Station, on receiving credible information, about the possession and transportation of ganja illegally, went to the NH-16 road of RTC Depot Kurmannapalem of Duvvada, and arrested the petitioners/A.1 to A.6 and seized 107 Kgs of dry Ganja under the cover of mediators report on the spot by following due procedure. Basing on the same, the present crime is registered against the petitioners/A.1 to A.6.
3. Heard Sri Medisi Ratna Rao, learned counsel for the petitioners/A.1 to A.6 and learned Assistant Public Prosecutor for the respondent-State.
4. Learned counsel for the petitioners submits that the petitioners are unconnected with the offences alleged. He submits that the petitioners were arrested on 21.01.2021 alleging that the ey ok contraband of 107 Kgs of dry ganja was transported illegally and was seized from the possession of the petitioners. He submits that the petitioners are falsely implicated in this case and they are languishing in jail from the last 180 days. He further submits that the police neither filed charge sheet nor made any application seeking extension of time for filing charge sheet. As such, the petitioners are entitled for statutory bail.
5. Learned Assistant Public Prosecutor has not disputed the fact that 180 days time is elapsed and the prosecution failed to file any application seeking extension of time to file charge sheet. He further submits that petitioners belong to Maharashtra State.
6. Section 36A of the NDPS Act reads thus:
"36A. Offences triable by Special Courts: () 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 wiable 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 @ person accused of or suspected of the commission of an offence under. this Act is forwarded to a Magistrate under subsection (2) or sub-section (24) 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 noi 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 fii) upon or at any time before the expiry of the period of detention authorised by him, thet the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having juriesiction, [aaa we fc} the Special Court may exercise. in relation to the person Jorwarded to it under clause (bh), the same power which a Magistrate having jurisdiction lo pry 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;
(@)} a Special Court may, upon perusal of police report af the facts constinding an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) When irving 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, £973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magisirate" in that section included alsa a reference to a "Special Court" constituted under section 36.
(4) In respect of persons accused of an offence punishable under section 19 ar section 24 or section 27 A or for offences involving commercial quantity the references in sub-section (2) of sectian 16? of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days". where they occur, shall be canstrued as reference to "one hundred and eighty days":
Provided that, if it is not possible io complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up fo one year on the report of the Public Prasecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period af one hundred and eighty days.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 af 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily."
Section 167 (2) of Cr.P.C reads thus:
"(2) The Magistrate to whom an accused person is forwarded under this section mety, 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 commut it for trial, and considers furthee 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 setisfied that adequate grounds exist for doing so, but no Magistrate shail authorize the detention of the accused person in custody under this paragraph for a total period exceeding.-
G) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or impesonment for a term of not less than ten years;
{ty} 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 sa released under the provisions of Chapter XXXIII Jor the purposes of that Chapter]
(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him:
(ce) 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 [- 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:].° Explanation If.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production af the accused person may be proved by his signature on the order authorizing detention."
7. The Hon'ble Apex Court in the case of Uday Mohantat Acharya v. State of Maharashtra' has observed that personal liberty is one of 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 i 2 (2001)5 SCC 453 4 4 3 cA authorize the detention of the accused in custody up to 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, it could be violative of Article 21 of the Constitution of India and the Hon'ble Apex Court in recent judgment in S.Kasi v. State? wherein it was observed that the indefeasible right to default bail under Section 167 (2) Cr.P.C. is an integral part of the right to personal liberty under Article 21 of the Constitution, 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.
8. In view of the foregoing reasons, as the charge sheet is not filed within the statutory period of 180 days as contemplated under Section 36A (4) of the NDPS Act nor any application seeking 2 2090 SCC OnLine SC 529 sy 5 en saaeiniiene indiana ; soles ASSES meteersernare tions OTT ceee SESE grat nied reticrinen ae AN GSES RAREST ERE RRS ann Ie arannnoanAn SAAR extension of time is filed, the petitioners are entitled for statutory bail, which is an indefeasible right of the accused as laid down by the Hon'ble Apex Court in catena of cases.
9. Accordingly, this Criminal Petition is allowed. The petitioners/A.1 to A.6 shall be enlarged on bail in Crime No.32 of 2021 of Duvvada Police Station, Visakhapatnam, on their executing self bonds for Rs.1,80,000/- (Rupees one lakh eighty thousand only) each with two sureties for a like sum each to the satisfaction of the Court of the VII Additional Chief Metropolitan Magistrate, Gajuwaka at Visakhapatnam. On such release, the petitioners/A.1 to A.6 shall not leave the State and shall appear before the Station House Officer, Duvvada Police Station, Visakhapatnam, once in a week between 10.00 AM and 1.00 PM, till completion of trial.
Sd/-M.SURYANADHA REDDY ASSISTANT. REGISTRAR TRUE COPY! ap | For ASSISTANT REGISTRAR / The Metropolitan Sessions Judge-cum- | Addl, District and Sessions Judge-cum- Special Judge for Trial of offences under NDPS Act at Visakhapatnam. ~ The VIL Addl. Chief Metropolitan Magistrate, Gajuwaka. At Visakhapatnam City. The Superintendent, Central Prison, Visakhapatnam, _ The Station House Officer, Duvvada Police Station, Vishakhaptanam District. One CC to SRI. MEDIS!] RATNA RAO Advocate [OPUC] Two CC's to Public Prosecutor, High Court of AP, Amaravati[OUT] .
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Nok wh One spare copy ~ HIGH COURT LKd DATED: 20/07/2021 ORDER CRLEP.No.3428 of 2021 ALLOWED