Back
ANDHRA PRADESH HIGH COURT AT AMARAVATI
Subba Reddy Satti, J.
Pagidala Parvathalu & Ors. – Appellants
Versus
State of Andhra Pradesh – Respondent
Criminal Petition No. 4168 of 2022
Decided On : 04-07-2022
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8(C) READ WITH 20(B)(II)(C) - DEFAULT BAIL - SECTION 36(A) OF THE NDPS ACT READ WITH 167 OF CR.P.C. - ENTITLEMENT - DELAY IN FILING CHARGE SHEET - INTERPRETATION OF SECTION 36(A) OF THE NDPS ACT AND SECTION 167(2) OF CR.P.C. - COURT HELD THAT THE PETITIONERS ARE ENTITLED TO DEFAULT BAIL DUE TO THE PROSECUTION'S FAILURE TO FILE A CHARGE SHEET WITHIN THE STIPULATED TIME.
Fact of the Case:
The petitioners, A7 and A8, were arrested on 26.10.2021 for allegedly possessing and transporting 2000 Kgs of ganja in violation of Section 8(c) read with 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). They were denied bail by the lower court and filed a petition under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking enlargement on bail.
Finding of the Court:
The court observed that the petitioners had been in custody since 27.10.2021, a period of 217 days, and that the prosecution had failed to file a charge sheet within the stipulated time of 180 days as per Section 36-A(4) of the NDPS Act, even after being granted an extension of 60 days. The court held that this delay entitled the petitioners to default bail under Section 167(2) of the Cr.P.C.
Issues: 1. Whether the petitioners are entitled to default bail under Section 36(A) of the NDPS Act read with 167 of Cr.P.C. due to the prosecution's failure to file a charge sheet within the stipulated time?
Ratio Decidendi: The court interpreted Section 36(A) of the NDPS Act and Section 167(2) of the Cr.P.C. and held that the petitioners had an indefeasible right to claim default bail since the investigation was not completed within the stipulated time and the charge sheet was not filed even after the extended time granted by the court. The court relied on the judgments in Akula Ravi Teja v. State of A.P. and Rakesh Kumar Paul Vs. State of Assam to support its decision.
Final Decision: The court allowed the petition and directed the petitioners to file an appropriate petition before the jurisdictional court, which was required to consider the petition and pass orders within a week.
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. 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
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....
The right to default bail under Section 167(2) Cr.P.C. is absolute if the investigation is not completed within the stipulated time, necessitating a public prosecutor's report for any extension.
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 right to default bail under Section 167(2) Cr.P.C. is absolute and must be granted if the prosecution fails to file a challan within the stipulated time, as per Section 36A(4) of the NDPS Act.
The right to default bail is an indefeasible right linked to Article 21 of the Constitution and is subject to the law and procedure laid down by the Legislature.
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
