Back
ANDHRA PRADESH HIGH COURT AT AMARAVATI
Subba Reddy Satti, J.
Manmohan Patel & Ors. – Appellants
Versus
State of Andhra Pradesh – Respondent
Criminal Petition No. 2910 of 2022
Decided On : 06-07-2022
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36A(4) - EXTENSION OF TIME FOR FILING CHARGE SHEET - NOTICE TO ACCUSED - SECTION 167(2) OF CR.P.C. - DEFAULT BAIL - APPLICATION FOR ENFORCEMENT OF RIGHT - PREREQUISITE FOR GRANT OF BAIL ON DEFAULT - SECTION 37 OF NDPS ACT - BAIL IN CASES INVOLVING OFFENCES UNDER THE NDPS ACT - REASONABLE GROUNDS FOR BELIEVING THAT THE ACCUSED IS NOT GUILTY AND THAT HE IS NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL.
Fact of the Case:
Accused Nos. 2 and 3 in Crime No. 81 of 2021 of Mothugudem Police Station, East Godavari District, filed a criminal petition under Section 437 and 439 of Code of Criminal Procedure, 1973 (Cr.P.C) seeking regular bail. They were arrested on 07.11.2021 for transporting 1000 Kgs of Ganja in a Lorry. The prosecution did not file a charge sheet within the time stipulated as per Sec 36A(4) of NDPS Act. The petitioners contended that they were entitled to regular bail as no charge sheet was filed within 180 days.
Finding of the Court:
The court held that the petitioners were not entitled to statutory bail under Section 167 (2) Cr.P.C. as the prosecution had filed an application seeking extension of time before the expiry of 180 days. The court also held that the petitioners had not filed an application before the jurisdictional court claiming the statutory right under Section 167(2) of the Code, which is a prerequisite for the grant of default bail.
Issues: 1. Whether the petitioners were entitled to statutory bail under Section 167 (2) Cr.P.C. as the prosecution did not file a charge sheet within 180 days? 2. Whether the petitioners had filed an application before the jurisdictional court claiming the statutory right under Section 167(2) of the Code?
Ratio Decidendi: 1. The court held that the petitioners were not entitled to statutory bail under Section 167 (2) Cr.P.C. as the prosecution had filed an application seeking extension of time before the expiry of 180 days. The court relied on the judgment of the Hon'ble Apex Court in Rakesh Kumar Paul Vs. State of Assam (2017) 15 SCC 67, which held that an application claiming the statutory right under Section 167(2) of the Code is a prerequisite for the grant of bail on default. 2. The court held that the petitioners had not filed an application before the jurisdictional court claiming the statutory right under Section 167(2) of the Code. The court relied on the judgment of the Hon'ble Apex Court in Dr. Bipin Shantilal Panchal Vs. State of Gujarat (1996) 1 SCC 718, which held that an 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, cannot exercise that right at a later stage of the proceeding.
Final Decision: The court dismissed the criminal petition.
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. 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
An accused who is entitled to be released on bail under Section 167(2) of the Code must file an application before the jurisdictional court claiming the statutory right under Section 167(2) of the Co....
The failure of the prosecution to file a charge sheet within the stipulated time under Section 36(A) of the NDPS Act and Section 167(2) of the Cr.P.C. entitles the accused to default bail.
An accused is entitled to default bail under Section 167(2) of Cr.P.C. if charge sheet is not filed within 180 days as contemplated under Section 36-A(4) of the NDPS Act.
Where charge-sheet is not filed within 180 days as contemplated under Section 36-A(4) of NDPS Act and even within extended time, indefeasible right accrues to petitioners to seek bail under Section 1....
Supreme Court diluted rigour under Section 37 in a case involving commercial quantity of narcotic substance on ground that accused had no criminal antecedents and he was in custody for 2 ½ years and ....
The possession of a commercial quantity of contraband under the NDPS Act can invoke the bar under Section 37, impacting the entitlement to bail.
The main legal point established in the judgment is that the failure of the police to file a charge sheet within the stipulated time period, as required by the NDPS Act, can be a significant factor i....
Point of Law : Bail - Right of statutory bail under Section 167(2)Cr.P.C. is an indefeasible right.
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 ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
