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2022 DIGILAW 610 (AP)

Pagidala Parvathalu v. State of Andhra Pradesh

2022-07-04

SUBBA REDDY SATTI

body2022
JUDGMENT Subba Reddy Satti, J. - This is an application filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to enlarge the petitioners on bail. 2. The petitioners are A7 and A8 in crime No. 76 of 2021 of Moothugudem Police Station, East Godavari District, registered for the offences punishable under Section 8(c) read with 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS Act'). 3. The case of the prosecution is that on 26.10.2021, at about 4:00 pm, while Police were conducting vehicle check at Sukumamidi Bridge, Near Mothugudem Village, Chinturu Mandal, they found A6 to A8 in possession and transportation of 2000 Kgs of ganja in 80 bags in an Eicher Van bearing No. TS 12 UA 9816 from Sukumamidi forest area to Hyderabad, which was piloted by A6 by Honda I20 Asta car bearing No. AP 37 CB 8888. Police seized the contraband along with vehicles and other material under mediator's report. The petitioners were arrested on 26.10.2021 and they were sent to judicial custody on 27.10.2021. 4. Heard Smt. Ch. Ganga Kumari, learned counsel for the petitioners and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the respondent-state. 5. Learned counsel for the petitioners submits that petitioners are innocent and they are no way connected with the alleged offence. She submits that while conducting search, Police have not followed correct provisions as contemplated under the NDPS Act. She submits that the petitioners are languishing in jail for last 217 days and Police have not filed charge sheet even as on today, even after expiry of extended time. Therefore, the petitioners are entitled for default bail in view of Section 36(A) of the NDPS Act read with 167 of Cr.P.C. 6. Learned Special Assistant Public Prosecutor submits that prosecution filed a petition vide Crl.M.P. No. 158 of 2022 seeking extension of time for filing charge sheet and the Court below vide order, dated 09.05.2022 allowed the petitioner by extending time for filing charge sheet for a further period of 60 days from 25.04.2022. He fairly contended that charge sheet is not filed even as on today and hence, the petitioners are entitled for default bail. 7. It is appropriate to have a look at Section 36(A) of the NDPS Act, which reads thus: 36A. He fairly contended that charge sheet is not filed even as on today and hence, the petitioners are entitled for default bail. 7. It is appropriate to have a look at Section 36(A) of the NDPS Act, which 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 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 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.] 8. (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.] 8. 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. 1 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. 9. In Akula Ravi Teja v. State of A.P. (2021) 1 ALT (Cri.) 291, it was held that preliminary charge sheet filed without completing the investigation, cannot defeat the right of bail under Section 167(2) Cr.P.C. The relevant paragraphs of the said decision read as follows: 19) Now the crucial question that arises for determination is whether filing a preliminary charge-sheet without completing the investigation would defeat the right of the accused to claim default bail under proviso (a) to Section 167(2) Cr.P.C. In this context, it is relevant to note that the Parliament in its wisdom, considering the right of the accused to speedy investigation, stipulated period of time in proviso (a) to Section 167(2) Cr.P.C. stating that in all offences which are punishable with death or life imprisonment or with 10 years imprisonment, the investigation is to be completed within 90 days and in other offences, the investigation is to be completed within 60 days. The Code clearly envisaged that if the prosecuting agency fails to complete the investigation within the said stipulated period of time as contemplated under the Code, the accused is entitled to claim default bail. The said right conferred by the statute on the accused is an indefeasible right and he is entitled to bail as a matter of right on account of the default committed by the prosecuting agency in completing the investigation within the time stipulated by the statute. 20) It is significant to note that a plain reading of proviso (a) to Section 167(2) Cr.P.C. makes it manifest that what is required to claim for default bail under proviso (a) to Section 167(2) Cr.P.C. is failure on the part of the Investigating Agency to complete the investigation within the stipulated period of time.' In other words, it is the default committed by the Investigating Agency to complete the entire investigation within the stipulated time that confers right on the accused to claim for default bail. So, filing of charge-sheet is not the criteria or the actual test to be applied to decide whether the accused is entitled to default bail or not. It is relevant to note that the charge-sheet after completion of investigation will be filed to enable the Court to take cognizance of the offence. So, the Court cannot take cognizance of the offence on the basis of a preliminary charge-sheet filed without completing the entire investigation. Therefore, the crucial aspect that needs to be ascertained to consider the claim of the accused for default bail is whether the investigation is completed within the stipulated time of 90 days or not. So, when the Investigating Agency files only preliminary charge-sheet within the said stipulated time keeping the investigation pending or without completing the investigation, it will not under any circumstances defeat the right conferred on the accused to claim for default bail.' ..... 23) The very contents of the charge-sheet, which are extracted above, clinchingly establishes that the investigation is not completed and many crucial witnesses are yet to be examined to prove the overt acts of the accused in this crime and some other evidence as stated by the investigating officer is still to be Cx, P. No. 4276 2 2020 secured. Therefore, on account of default committed by the prosecuting agency in completing the investigation within the stipulated period of time, the petitioner acquired an indefeasible right to claim default bail under proviso (a) to Section 167(2) Cr.P.C. 10. Admittedly the petitioners were arrested on 26.10.2021 and they are in custody since 27.10.2021. As per Sections 36-A(4) of the NDPS Act, if the offence is punishable under Section 19 or 24 or 27A or the offences involving commercial quantity the prosecution has to complete investigation within 180 days. If the prosecution fails to complete investigation within 180 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 specific reasons for the detention of the accused beyond the said period of 180 days. 11. In the present case the prosecution filed petition seeking extension of time and time was extended for further period of 60 days from 25.04.2022. Thus, the extended time expired on 25.06.2022 and even after expiry of extended time, charge sheet is not yet filed. 11. In the present case the prosecution filed petition seeking extension of time and time was extended for further period of 60 days from 25.04.2022. Thus, the extended time expired on 25.06.2022 and even after expiry of extended time, charge sheet is not yet filed. The petitioners have been languishing in jail since 27.10.2021 and they have completed 217 days. Since charge sheet is not filed within 180 days as contemplated under Section 36-A(4) of the NDPS Act and even within the extended time, an indefeasible right accrues to the petitioners to seek bail under Section 167(2) of Cr.P.C. 12. In Rakesh Kumar Paul Vs. State of Assam (2017) 15 SCC 67 , it was held as under: 'The law laid down as above shows that the requirement of an application claiming the statutory right under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the appellant never sought default bail before the court concerned, as such not entitled to the same.' 13. In view of the expression by the Apex Court petitioners have to make application under Sec 167(2) before the jurisdictional Court. 14. Therefore, petitioners are at liberty to file appropriate petition before the jurisdictional Court and the said Court shall consider the petition, if it is otherwise in order and shall pass orders within a period of one week from the date filing of such petition. 15. Accordingly, this criminal petition is disposed of. Consequently, miscellaneous applications pending, if any, shall stand closed.