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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
CHEEKATI MANAVENDRANATH ROY, J.
M. Mohanraj S/o Manoharan – Petitioner
Versus
The State of Andhra Pradesh – Respondent
Criminal Petition No. 1642 of 2022
Decided On : 22-03-2022
NDPS Act - Bail - Sections 420, 471, 468, 34 of IPC and Section 8(c), 20(b)(ii)(C) of NDPS Act - Summary: The court discussed the petitioner's application for default bail under Section 167(2) Cr.P.C. and the prosecution's application for extension of the investigation period under Section 36A(4) of the NDPS Act. The court found that the petitioner's possession of 100 KGs of ganja, a commercial quantity, invoked the bar under Section 37 of the NDPS Act, and as the investigation was still pending, the petitioner was not entitled to bail at that stage. The court distinguished a previous judgment where the investigation was completed and charge sheet filed, leading to a different outcome. The legal provisions of NDPS Act, particularly Sections 36A(4) and 37, influenced the court's decision.
Fact of the Case:
The petitioner was apprehended while transporting 200 KGs of ganja and found in possession of 100 KGs of ganja, leading to charges under IPC and NDPS Act. The petitioner sought default bail, but the prosecution had filed for an extension of the investigation period.
Finding of the Court:
The court found that the petitioner's possession of a commercial quantity of ganja invoked the bar under Section 37 of the NDPS Act, and as the investigation was still pending, the petitioner was not entitled to bail at that stage.
Issues: Entitlement to default bail under Section 167(2) Cr.P.C. and application of Section 37 of the NDPS Act.
Ratio Decidendi: The possession of a commercial quantity of ganja invoked the bar under Section 37 of the NDPS Act, and the extension of the investigation period under Section 36A(4) influenced the decision on the petitioner's entitlement to bail.
Final Decision: The Criminal Petition was dismissed.
ORDER :
1. This criminal petition under Section 439 of the Code of Criminal Procedure, 1973 is filed, to enlarge the petitioner on bail.
2. The petitioner is A-5 in Crime No. 190 of 2021 of Eluru Rural Police Station, West Godavari District.
3. A case under Sections 420, 471, 468 read with Section 34 of the Indian Penal Code, 1860 and Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS’ Act) was registered against him along with other accused in the above crime.
4. Briefly stated, it is the case of the prosecution that on 15.06.2021 when the petitioner herein who was A-5, and A-4 were transporting 200 KGs of ganja in two Auto Rickshaws at the instance of A-1 to A-3 that they were apprehended by the police and the contraband was seized from their possession. 100 KGs of ganja was found in one Auto Rickshaw in which the petitioner was travelling an another 100 KGs of ganja was found in another Auto Rickshaw in which A-4 was travelling. Therefore, it is stated that the petitioner herein along with other accused has committed the aforesaid offence.
5. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State.
6. Learned counsel for the petitioner would submit that the petitioner was arrested on 14.06.2021 and the stipulated period of 180 days for completion of investigation stood expired by 11.12.2021 and the investigation is not completed within the said period and charge sheet is not filed by the prosecution within the statutory period of time. Therefore, the petitioner has filed an application under Section 167(2) Cr.P.C. for grant of default bail and in the meanwhile, prosecution has filed an application under Section 36A(4) of the NDPS Act for extension of period of investigation and the lower Court instead of disposing the said petition filed under Section 167(2) Cr.P.C. on the same day, waited till the disposal of the petition for extension of period of investigation, thereafter allowed the said petition and thereafter dismissed the petition filed by the petitioner for default bail. He would submit that the impugned order of the learned Magistrate is erroneous and unsustainable under law and thereby prayed for grant of bail to the petitioner.
7. Learned Additional Public Prosecutor opposed the criminal petition. He would submit that even before expiry of 180 days of period of time for completion of investigation, the prosecution has filed petition for extension of period for completion of investigation well within the time i.e. on 22.11.2021 itself and the said petition was allowed extending the period of time for completion of investigation for another 180 days and as such, the petitioner is not entitled for default bail under Section 167(2) Cr.P.C. He would further submit that the contraband involved in this case is 200 KGs of ganja and 100 KGs of ganja was found in possession of the petitioner herein and it is a commercial quantity and the bar under Section 37 of the NDPS Act applies to the present facts of the case and as investigation is not completed, he would pray for dismissal of the petition.
8. Perused the record.
9. The facts of the case show that the petitioner along with A-4 was apprehended on 14.06.2021 while they were illegally transporting 200 KGs of ganja in two Auto Rickshaws. The petitioner was found to be travelling in one Auto Rickshaw and 100 KGs of ganja was found in his possession and the police seized the said contraband from his possession. The total ganja that is involved in this case is 200 KGs of ganja and the ganja that was found in possession of the petitioner is 100 KGs of ganja which is a commercial quantity. Therefore, the bar contained in Section 37 of the NDPS Act applies to the present facts of the case. There is absolutely nothing to indicate on record that the petitioner is not guilty of committing the said offence. On the other hand, as the petitioner was found to be in illegal possession
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 commercial quantity of contraband and prima facie evidence can be considered as grounds for denying bail under the NDPS Act.
The accused were not entitled to claim default bail as the charge sheet had been filed before the expiry of the stipulated period of investigation under 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 possession of a commercial quantity of drugs under the NDPS Act can bar the grant of bail, especially when the accusation is prima facie well founded and the investigation is pending.
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....
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.
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 ....
The rigour contained in Section 37 of the NDPS Act applies to cases involving commercial quantities of drugs, and bail may be denied based on this provision and the pending investigation.
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