Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(AP) 1096

ANDHRA PRADESH HIGH COURT AT AMARAVATI
Ravi Cheemalapati, J.
Lunavath Kalyan – Appellant
Versus
State of Telangana & Ors. – Respondents
Criminal Petition No. 4746 of 2022
Decided On : 20-07-2022

Advocates appeared:
Rapolu Bhaskar, for the Appellant; Public Prosecutor, for the Respondents

THE RIGHT TO DEFAULT BAIL UNDER SECTION 167(2) OF THE CR.P.C. IS AN INTEGRAL PART OF THE RIGHT TO PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION.

Headnote:
DEFAULT BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36(A), 167(2) - SUMMARY DISMISSAL - COURT HELD THAT THE PETITIONER IS ENTITLED TO DEFAULT BAIL AS THE CHARGE SHEET WAS NOT FILED WITHIN 180 DAYS.
Fact of the Case:

PETITIONER WAS ARRESTED FOR POSSESSION OF 200 KGS OF GANJA UNDER SECTION 8(C) READ WITH 21(B)(II)(C) OF THE NDPS ACT. HE WAS IN JUDICIAL CUSTODY FOR SIX MONTHS WITHOUT A CHARGE SHEET BEING FILED.
Finding of the Court:

THE COURT HELD THAT THE PETITIONER WAS ENTITLED TO DEFAULT BAIL UNDER SECTION 167(2) OF THE CR.P.C. AS THE CHARGE SHEET WAS NOT FILED WITHIN 180 DAYS.
Issues: WHETHER THE PETITIONER IS ENTITLED TO DEFAULT BAIL UNDER SECTION 167(2) OF THE CR.P.C.
Ratio Decidendi: THE COURT RELIED ON THE SUPREME COURT JUDGMENTS IN UDAY MOHANLAL ACHARYA V. STATE OF MAHARASHTRA AND S. KASI V. STATE TO HOLD THAT THE RIGHT TO DEFAULT BAIL IS AN INTEGRAL PART OF THE RIGHT TO PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION.
Final Decision: THE COURT ALLOWED THE PETITION AND DIRECTED THE RELEASE OF THE PETITIONER ON BAIL SUBJECT TO CERTAIN CONDITIONS.

JUDGMENT

Ravi Cheemalapati, J. - 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-2 in connection with Crime No. 9 of 2022 of Yetapaka Police Station, East Godavari District registered for the offence punishable under Section 8(C) read with 21(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'NDPS Act').

2. The case of prosecution is that on 24.01.2022 on receipt of credible information about illegal transportation of ganja, Sub Inspector of Police, Yetapaka Police Station conducted raid near Sand Check Post, Purushothapatnam, Yetapaka Mandal, East Godavari District and found the petitioner/A2 and A1 transporting 200 KGs Ganja in Maruthi Breeza Car from Sileru forest area to Solapur of Maharashtra, which was supplied to them by A3. The police caught the petitioner/A2, while A1 escaped without being caught. Basing on the said report, present crime was registered.

3. Heard Sri Rapolu Bhaskar, learned counsel for petitioner and learned Special Assistant Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioner submits that the petitioner is in judicial custody from the last six months and the prosecution did not file the charge sheet. Hence, the petitioner is entitled for default bail.

5. On the other hand, learned Special Assistant Public Prosecutor submits that the contraband of 200 KGs is seized from the possession of the accused in this crime and the petitioner belongs to Telangana State and if he is enlarged on bail, it is very difficult for the prosecution to secure his presence during the course of trial. The learned Special Assistant Public Prosecutor has further contended that petitioner can approach the trial Court for default bail. Hence, prayed to dismiss the bail petition.

6. Thus, taking into consideration the submissions made by both the counsel and facts and circumstances of the case, it is appropriate to extract the provisions applicable to the facts of the present case.

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, 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

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