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2022 DIGILAW 619 (AP)

Manmohan Patel v. State of Andhra Pradesh

2022-07-06

SUBBA REDDY SATTI

body2022
JUDGMENT Subba Reddy Satti, J. - Accused Nos. 2 and 3 in Crime No. 81 of 2021 of Mothugudem Police Station, East Godavari District, filed the above criminal petition under Section 437 and 439 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking regular bail. 2. The case of the prosecution is that Sub Inspector of Police, Mothugudem Police Station along with staff during vehicle check on 07.11.2021 at about 4.00 p.m. at Godlagudem village of Chinturu Mandal, apprehended A-2 to A-6 and seized 1000 Kgs of Ganja in 40 plastic bags, each containing 25 Kgs, all worth Rs. 30 lakhs. The said contraband was being transported in a Lorry bearing No. UP70 GT 7162 piloted by a Royal Enfield motorcycle bearing No. AP37 BP 101 and Hero Glamour motorcycle bearing No. OD30 D 3800. Police seized the vehicles and other material along with contraband under the cover of mediators report by following due procedure. A-2 to A-6 were arrested on 07.11.2021 and sent to judicial custody on 08.11.2021. Basing on the same, the above crime was registered for the offence punishable under Section 8 (c) r/w 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). 3. A-2 and A-3 filed application seeking regular bail vide Crl.M.P. No. 2744 of 2021 before the I Additional Sessions Judge, East Godavari at Rajamahendravaram and the same was dismissed on 30.11.2021. 4. Heard Sri Chandra Sekhar Ilapakurthi, learned counsel for petitioners and learned Special Assistant Public Prosecutor for respondent-State. 5. Learned counsel for petitioners would submit that the petitioners were arrested on 07.11.2021 and were sent to judicial custody on 08.11.2021. Since then, they are judicial remand. From the date of arrest prosecution did not file charge sheet within the time stipulated as per Sec 36A(4) of NDPS Act. 180 days time to file charge sheet was completed by 07.05.2022, application for grant of bail was filed before Court on 11-4-2022 and pending same, public prosecutor filed petition seeking extension of time before the learned Sessions Judge on 21-4-2022. Learned Sessions Judge by order dated 11.05.2022 in Crl.M.P. No. 160 of 2022 extended the time for filing charge sheet for a further period of 60 days from 07.05.2022. Learned Sessions Judge by order dated 11.05.2022 in Crl.M.P. No. 160 of 2022 extended the time for filing charge sheet for a further period of 60 days from 07.05.2022. He would submit that prosecution filed petition only to defeat the right of accused under Section 167 (2) Cr.P.C. He further submits that present application is filed before this Court on 11.04.2022 and the prosecution filed the petition seeking extension of time in Crl.M.P. No. 160 of 2022 on 21.04.2022, without disclosing the pendency of bail application before this Court. Thus, he would contend that since no charge sheet was filed within 180 days, petitioners are entitled to regular bail. 6. Learned counsel for petitioner further submits that at the time of filing application seeking extension of time by the prosecution, no notice was issued to the accused. He relied on the judgment of the Hon'ble Apex Court in Sanjay Kumar Kedia Vs. Intelligence Officer, Narcotic Control Bureau and Ors. (2009) 17 SCC 631 and would contend that accused is entitled to notice when an application is filed by the prosecution seeking extension of time under proviso to Section 36A (4) of NDPS Act. 7. Learned counsel for petitioner also relied on judgment of the Hon'ble Apex Court in Rakesh Kumar Paul Vs. State of Assam (2017) 15 SCC 67 and would submit that petitioner is entitled to default bail under Section 167 (2) of Cr.P.C., since the charge sheet is not filed within 180 days and he thus prayed to grant bail to the petitioner. 8. Learned Special Assistant Public Prosecutor would submit that petitioner filed the present application under Sections 437 and 439 of Cr.P.C., for grant of regular bail on 11.04.2021 and the petitioners were arrested on 07.11.2021. 180 days of time stipulated under Section 36A (4) of NDPS Act would be completed by 06.05.2022. He would submit that application seeking extension of time was filed on 21.04.2022 duly serving notice to A-2 to A-6 and the counsel appearing for A-2 to A-6 also filed counter therein and after consideration, learned Sessions Judge by order dated 11.05.2021 extended time for filing charge sheet by 60 days from 07.05.2022. He also would submit that no right was accrued to the accused under Section 167 (2) Cr.P.C., and thus prayed this Court to dismiss the bail application. 9. He also would submit that no right was accrued to the accused under Section 167 (2) Cr.P.C., and thus prayed this Court to dismiss the bail application. 9. I have given my anxious consideration and perused the material available on record. 10. Petitioners/A-2 and A-3 were arrested on 07.11.2021 and 1000 Kgs of contraband was seized from the conscious possession of A-2 and A-3, who are lorry driver and cleaner. Section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the NDPS Act. Section 37 of NDPS Act reads as follows: '37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) -- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.' 11. Under Section 37(1)(b)(ii) of NDPS Act, the limitations qua grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are: (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii) There must exist 'reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. 12. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record about the guilt or otherwise of the accused. 12. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record about the guilt or otherwise of the accused. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. 13. In Madan Lal Vs. State of Himachal Pradesh (2003) 7 SCC 465, the Hon'ble Apex Court held thus: '19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. 21. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.' 14. In Union of India Vs. Rattan Mallik (2009) 2 SCC 624 , the Hon'ble Apex Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non-application of mind by the High Court. 15. Coming to the facts of the present case, going by the mediators report, A-2 is driver of the lorry and he confessed before the police that he along with A-2 went to forest area in Sukumamidi village, met one Raju and paid Rs. 3,00,000/- to him. 15. Coming to the facts of the present case, going by the mediators report, A-2 is driver of the lorry and he confessed before the police that he along with A-2 went to forest area in Sukumamidi village, met one Raju and paid Rs. 3,00,000/- to him. The said Raju in turn loaded 1000 Kgs of ganja in 40 bags and he also requested said Raju to pilot his lorry till Bhadrachalam and when they reached the above place, police intercepted their vehicle and when they tried to escape, police arrested and seized the contraband. The confession statement of A-3 was also recorded and he also confessed about his accompanying A-2 in lorry, A-2 parting money with him and loading of contraband. Thus, prima facie, A-2 and A-3 are in conscious possession of contraband. 16. Contention of learned counsel for petitioners is that they were arrested on 07.11.2021 and 180 days period is completed by 07.05.2022. Since charge sheet was not filed within time as contemplated under Section 36A(4) of NDPS Act, petitioners are entitled to statutory bail under Section 167 (2) Cr.P.C. The said contention falls to ground for the reason that before expiry of 180 days, prosecution filed application on 21-4-2022 in Crl.M.P. No. 160 of 2022 on the file of the I Additional Sessions Judge, East Godavari, Rajamahendravaram, seeking extension of time, by duly giving notice to A-2 to A-6 and their counsel also filed counter in the said petition. Though the said application was filed on 21.04.2022, the learned Sessions Judge passed order on 11.05.2022 extending time of 60 days from 07-5-022. By the date when the said application was filed, 180 days period is not completed and hence, the petitioners are not entitled for statutory bail. 17. In Rakesh Kumar Paul's case (2017) 15 SCC 67 (supra), the Hon'ble Apex Court held thus: '78. 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 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.' 18. In Dr. Bipin Shantilal Panchal Vs. State of Gujarat (1996) 1 SCC 718 , a three Judge Bench decision of the Hon'ble Apex Court, observed thus: 'In this case, the accused had not made application for enforcement of his right accruing under proviso to Section 167(2) of the Code. But raised the contention only in the Supreme Court. This Court, therefore, formulated the question thus - Whether the accused who was entitled to be released on bail under proviso to sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, and answered in the negative.' 19. In view of the expressions of Hon'ble Apex Court in the judgments referred to supra, one has to file an application before the jurisdictional court claiming the statutory right under Section 167(2) of the Code and the same is a prerequisite for the grant of default bail. 20. As observed supra, the present application is filed under Section 437 and 439 of Cr.P.C., seeking regular bail. If any right is accrued to the petitioners, they would have approached the learned Sessions Judge by invoking Section 167 (2) of Cr.P.C. 21. The other contention of learned counsel for petitioners is that notice to accused is mandatory before filing application by the prosecution seeking extension of time. Since this Court is dealing with application filed under Section 437 and 439 of Cr.P.C., it is not necessary to go into those aspects, enlarging the scope of present application. Since the quantity seized from conscious possession of A2 and A3 is 1000 Kgs of Ganja, this Court is not inclined to grant bail to the petitioners. 22. Accordingly, the criminal petition is dismissed. As a sequel, all the pending miscellaneous applications shall stand closed.