The right to default bail under Section 167(2) of Cr.P.C. is an indefeasible right of the accused, integral to the right to personal liberty under Article 21 of the Constitution. Prolonged detention without a charge sheet or an extension petition violates this right.

JUDGMENT

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 petitioner/A-6 in connection with Crime No.662 of 2020 of S.Rayavaram police station, Visakhapatnam District, registered for the offence punishable under Section 20(b)(ii)(C) r/w 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).

2. The case of prosecution is that on 29.11.2020 on receipt of credible information about illegal transportation of ganja, the respondent police along with staff and mediators, rushed to near Dolphin Dhaba on NH-16 road Highway of S.Rayavaram Mandal and while conducting vehicle check, they arrested A-1 to A-3 and seized 820 KGs of dry ganja in 25 plastic bags while transporting the same in a lorry bearing No.UP 72 AT 4221 under the cover of mediators report. Basing on the said report, the present crime was registered and sent the accused to judicial custody on the same day. The accused 1 to 3 confessed about the role of present petitioner as pilot of the crime vehicle and he was arrested on 31.12.2020 and since then he has been in judicial custody.

3. Heard Sri M.Chalapati Rao, learned counsel for the petitioner and learned Assistant Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioner/A-6 submits that the petitioner is languishing in jail from the last 200 days. It is stated that no contraband is seized from the petitioner even as per the allegations he is piloting the vehicle containing contraband and the petitioner is a agricultural coolie and unconnected with the alleged offence. He submits that as mandated under Section 36 of the NDPS act, police neither filed charge sheet nor filed any application seeking extension of time, as such, petitioner is entitled for default bail.

5. On the other hand, learned Assistant Public Prosecutor submits that already extension petition is filed before the Court below, however, the same is filed on behalf of accused 1 and 2.

6. Earlier also this Court in several cases has noticed that where huge quantity of contraband is involved, police neither filing charge sheet nor filing any application seeking extension of time and several order copies were marked to Director General of Police. It appears that no action has been initiated by Director General of Police and every day this Court finds where huge contraband is involved, the police for the reasons best known to them are not filing extension petitions and this Court is constrained to grant default bail to the accused. This Court is very much dissatisfied with the way the respondent-Police are functioning.

7. Section 36(A) 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 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