Andhra Pradesh High Court - Amravati
Mohammad Zakir, vs The State Of Andhra Pradesh, on 30 March, 2021
Author: B Krishna Mohan
Bench: B Krishna Mohan
TUESDAY, THE THIRTIETH DAY OF MARCH, TWO THOUSAND AND TWENTY ONE : PRESENT: THE HONOURABLE SRI JUSTICE B KRISHNA MOHAN CRIMINAL PETITION NO: 551 OF 2021 Between: 1. Mohammad Zakir, S/o Shaik Kwaza , Aged 28 years, Muslim Driver/ Ganesh Gowdari Transport, Gangu plot Bagabanapura Area, beside Juna Shadi kana Washim District, Maharashtra State, Driver of Maruti Suzuki Swaift, Car, bearing,No.MH.04,ED.4868(9975363053), Aadhaar.No788027 136051 2. Mathin Sha, S/o Rahim sha, 31 years,Musilm Hamali, PO near Hanuman Temple, Near Garib Nawaj School. Mangrulpir (V) Talug, Washim District, Maharashra (9623074996) Aadhaar No.963693072036. 3. Alkam Khan, S/o Mahaboob Khan, 31 years, Muslim Hamali, Janatha Bazaar, Akola, R/o Mohammad Ali Road,3rd Lane, Near Lal Bungalow,Baidpura Taluq, Akola District, Maharashra State (9408579770) Aadhaar No.696410407212. 4. Kalim sha, S/o Yousuf sha, 29 years Muslim Hamali shelu Bazaar Mangrulpir (V) Talug, Washim District, Maharashra State. Aadhaar No. 54247790074 ..-Petitioners/Accused No.1 to 4 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 & 439 of Cr.P.C, praying that in the circumstances stated in the memorandum of grounds filed in the Criminal Petition, the High Court may be pleased to release the petitioner bail in U/s 8 (c) 20(b)(ii) (c) of NDPS Act. SC.No. of 2021 on Cr.No.236/2020, Tanuku Town Police station. The petition coming on for hearing, upon perusing the Petition and the affidavit 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
HONOURABLE SRI JUSTICE B. KRISHNA MOHAN Criminal Petition No.551 of 2021 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 to A.4 in connection with Crime No.236 of 2020 of Tanuku Town Police Station, West Godavari District, registered for the offences punishable under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act").
2. The case of prosecution is that on 20.09.2020 at about 2.00 P.M., on receipt of credible information about illegal possession and transportation of Ganja, the Sub-Inspector of Police, Tanuku Town Police Station, on securing the presence of mediators and a Gazetted Officer, proceeded to the place opposite to Sri Dhanalakshmi Tiles and Marbles shop. At about 4.30P.M., the police found a car bearing No.NH-4-VD-4868 was coming from Ravulapalem towards Eluru side and stopped the same and on verification, they found 78.03Kgs of Ganja and seized the same from the possession of the petitioners under the cover of mediator's report. Basing upon the said mediator's report, the present crime is registered. The petitioners were arrested on 20.09.2020 and sent for remand.
3. Heard Sri Medisi Ratna Rao, learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-State.
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4. Learned counsel for the petitioners/A.1 to A.4 submits that the petitioners were arrested and sent for remand on 20.09.2020 and since then the petitioners are languishing in jail. He submits that as per Section 36A (4) of the NDPS Act, the police have to file the charge sheet within 180 days. In this case, the police neither filed any application seeking extension of time nor filed the charge sheet. As such, the petitioners are entitled for statutory bail.
5. Learned Additional Public Prosecutor does not dispute the fact that the police failed to file charge sheet within 180 days nor made any application seeking extension of time. However, he submits that the investigation in this case is pending and the other two accused are absconding. He submits that if the petitioners are released on bail, it is very difficult for the prosecution to secure their presence during trial. Hence, the petitioners are not entitled for grant of bail.
6. Section 36A 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 subsection (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 Jifteen days in the whole ~- aT rao CRLP.No.551 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 authorised 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 clause (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 27 A 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 4 --_--
BKM, J of 2021 } = 4 BKM, J CRLP.No.551 of 2021 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."
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 Jorwarded 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, -
(@) 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, {tt) 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 XXXII for the purposes of that Chapter, ] () 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 L- 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 IL.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the ~ ow 5 BKM, J CRLP.No.551 of 2021 production of 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 Mohanlal Acharya v.State of Maharashtra! has observed that personal 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 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 ' (2001)5 SCC 453 * 2020 SCC OnLine SC 529 NOOR ON
6 BKM, J CRLP.No.551 of 2021 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, 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.4 shall be enlarged on bail on their executing a personal bond for Rs.1,00,000/- (Rupees one lakh only) each with two sureties each for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Kovvur, West Godavari District. However, the petitioners/A.1 to A.4 shall appear before the Station House Officer, Tanuku Town Police Station, West Godavari District once in fifteen (15) days on Tuesday 10.00 A.M. and 1.00 P.M. till the charge sheet is filed.
The petitioners/A.1 to A.4 shall cooperate with the investigation.
Sd/-T.Madhavi ASSISTANT I(TRUE COPY!/ SECTION OFFICER . The Special Judge under NDPS Act-cum-| Additional District & Sessions Judge, / West Godavari District, Eluru.
The | Class Magistrate, Kovvuru, West Godavari District.
The Superintendent, Central Prison, Eluru, West Godavari District The Station House Officer, Tanuku Town Police Station, West Godavari District. One CC to Sri Medisi Ratna Rao, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of Andhra Pradesh. [OUT] One spare copy HIGH COURT BKMJ DATED: 30/03/2021 ORDER CRLP.No.551 of 2021 DIRECTION