Ahmed Kabeer v. State of Kerala; K.R. Hakeem v. State of Kerala; Jaffer Ali v. State of Kerala

## **C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943 BAIL APPL. NO. 2776 OF 2021** **CRIME NO.8/2020 OF Aluva Excise Circle Office, Ernakulam** ## **PETITIONER/S:** 0 AHMED KABEER AGED 32 YEARS PULIKKAL HOUSE, VALLAPUZHA P.O, PALAKKAD DISTRICT PALAKKAD, PIN - 679336 BY ADV ANITHA MATHAI MUTHIRENTHY ## **RESPONDENT/S:** > 0 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA PALAKKAD, PIN - 682031 BY ADV PUBLIC PROSECUTOR SMT.V.SREEJA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2021, ALONG WITH Bail Appl..2842/2021 AND 3104/2021, THE COURT ON 17.05.2021 DELIVERED THE FOLLOWING: BA 2776, 2842 & 3104 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943** **BAIL APPL. NO. 2842 OF 2021** Crime No. 08/2020 of Excise Circle Office, Aluva ## **PETITIONER/S:** 0 K.R.HAKEEM AGED 23 YEARS JALEELS, KURIYEDATH PARAMBA, KALLAIM CALICUT673003., PIN - 673003 BY ADV ANITHA MATHAI MUTHIRENTHY ## **RESPONDENT/S:** > 0 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR SMT.V.SREEJA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2021, ALONG WITH Bail Appl..2776/2021 AND 3104/2021, THE COURT ON 17.05.2021 DELIVERED THE FOLLOWING: BA 2776, 2842 & 3104 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943 BAIL APPL. NO. 3104 OF 2021** **CRIME NO.8/2020 OF Aluva Excise Circle Office, Ernakulam** ## **PETITIONER/S:** 0 JAFFER ALI AGED 33 YEARS SON OF ABDUL SALAM, VETTIKATTIL HOUSE, KANAYAMKARAYIL, KANAYAM. P.O., SHORNUR 2 VILLAGE, PALAKKAD DISTRICT, PIN - 679122 BY ADV K.ANAND ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE INSPECTOR OF EXCISE KERALA STATE EXCISE DEPARTMENT ALUVA CIRCLE, PERIYAR NAGAR, ALUVA, PIN - 683101 BY ADV PUBLIC PROSECUTOR SMT.V.SREEJA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 9.4.2021, ALONG WITH Bail Appl..2776/2021 AND 2842/2021, THE COURT ON 17.05.2021 DELIVERED THE FOLLOWING: BA 2776, 2842 & 3104 4 **C.R.** ## COMMON ORDER ## **Dated, this the 17[th] day of May, 2021** [B.A. Nos. 2776 of 2021, 2842 of 2021 and 3104 of 2021] ## Applications for regular bail under Section 439 Cr.P.C. 2. ApplicantS in B.A. Nos. 2776/21, 2842/21 and 3104/21 are accused Nos. 2, 1 and 3, respectively, in Crime No. 08/2020 of Excise Circle Office, Aluva for offences punishable under Sections 20(b)(ii)(C), 25 and 29 of the Narcotic Drugs and Psychotropic substances Act. The final report has been filed and taken on file as SC 145/ 2021 on the file of the VII Additional Sessions Court, Ernakulam. ## 3. The prosecution case, in brief, is this: On 02-09-2020 at about 08:10 PM, the Excise Inspector, Aluva and his party intercepted a lorry bearing Registration No. KL-05 AB 0352. The applicants were inside the lorry. On search, 2 Kgs of ganja each was recovered from the person of A1 and A2, and a further search of the lorry resulted in the seizure of 28 Kgs of ganja. A total of 32 Kgs 5 BA 2776, 2842 & 3104 of ganja was being transported by the accused who was party to a conspiracy to transport and store ganja of commercial quantity, intended for sale. The applicants were arrested and remanded to judicial custody. The application for statutory and regular bail filed by the applicants was dismissed by the jurisdictional Court, and hence they have approached this Court for indulgence. It is submitted by A1 and A2 that the accused have been in custody since 02-09-2020, and though the final report was filed on 20-03-2021, within the statutory period of 180 days stipulated under Section 167(2) read with Section 36A(4) of the NDPS Act, the cognizance was not taken till the expiry of 180 days on 01-03-2021. Hence the applicants are entitled to bail. 4. Heard Advocates Smt. Anitha Mathai Muthirenthy appearing for A1 and A2, Sri K Anand appearing for A3, and the Public Prosecutor Smt. V.Sreeja, appearing for the State. Records perused. Learned counsel Smt Anitha has strenuously argued that the accused are entitled to be released on bail as their custody consequent to the filing of the final report is illegal, and the remand was not under the 6 BA 2776, 2842 & 3104 provisions of Section 309 Cr.P.C. The learned counsel submits that, consequent to the filing of the final report, the remand could not have been extended under section 167 Cr.P.C. She points out to section 309 Cr.P.C., to argue that consequent to the filing of the final report, the remand to judicial custody can only be under section 309. But for that, the court will have to take cognizance. In the instant case, the charge sheet was filed on 20-02-2021. 180 days of custody got over by 01-03-2021. Hence the final report was filed before the expiry of the time contemplated under section 167 Cr.P.C. The applicants filed an application for statutory bail under Section 167 Cr.P.C read with Section 36A(4) of the NDPS Act as Crl.M.C 590/021, on 16-03-2021. The said application was dismissed by the the jurisdictional court on 19-03-2021, vide Annexure A1 Order. The learned counsel submits that the Court had not taken cognizance and assigned the case with the number SC 145/2021 only on 29-03-2021. The learned counsel submits that the detention of the accused from 01-03-2021 to 29-032021 is illegal. Reliance is placed on the decision of the Apex Court in BA 2776, 2842 & 3104 7 ## _**Pradeep Ram v. State of Jharkhand and Another [2019 KHC**_ _**6622]**_ to submit that on taking cognizance, the remand of the accused can only be made under section 309 Cr.P.C., and not under Section 167 Cr.P.C. The remand of the accused subsequent to the statutory period of 180 days is a clear violation of Article 21 of the Constitution, states the learned counsel. To further bolster her argument, the learned counsel seeks support in a decision of the Karnataka High Court in _**Devidrappa and another v. State of Karnataka [2004 KHC 2358]**_ , wherein it is held that the detention of the accused subsequent to the filing of the final report under section 167 Cr.P.C is illegal detention and so, the accused is entitled to bail. In that case, the final report was filed on 10-06-2003. The statutory period of 90 days under S. 167 Cr.P.C came to an end on 07-052003. No application for statutory bail was filed by the accused. The magistrate took cognizance of the case only on 27-06-2003. The court held that even though the detention of the accused from 07-052003 to 10-06-2003 was not illegal, the detention of the accused 8 BA 2776, 2842 & 3104 consequent to the filing of the charge sheet on 10-06-2003 was illegal and that the remand of the accused from 10-06-2003 till 27-06-2003 was neither under section 167 Cr.P.C nor under Section 309 Cr.PC, and hence illegal. Under such circumstances, the accused is entitled to bail. The learned counsel submits that the situation, in this case, is analogous, and hence the accused are entitled to bail. Moreover, the learned counsel submits that the final report is not complete as copies of all the documents relied upon by the the prosecution has not been handed over to the applicants. 5. In _**Sanjay Dutt v. State, [1994 KHC 1244]**_ , the Constitution Bench of the Supreme Court has held thus: "The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by S.167 but different provisions of the Cr.P.C. If that right had BA 2776, 2842 & 3104 9 accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because S.167 Cr.P.C ceases to apply." In _**Suresh Kumar Bhikamchand Jain v. State of Maharashtra, [2013 KHC 4232]**_ the Apex Court was considering a case in which, though the final report was filed within the time stipulated under S.167(2) Cr.P.C., sanction to prosecute the accused had not been obtained and as a result whereof, no cognizance was taken of the offence. Notwithstanding remand of the accused was extended from time to time. Statutory bail sought by the accused was opposed by the State stating that on the filing of the final report under S.167(2) Cr.PC., the conditions stood satisfied and even if sanction had not been obtained for prosecuting the accused, the trial Court was entitled to proceed further in the matter and that the extension of remand passed was not vitiated since the final report had already been filed within 90 days of the arrest of the accused. The Supreme Court rejected the plea of the accused thus: BA 2776, 2842 & 3104 10 "From the above dates, it would be evident that both the charge - sheet as also the supplementary charge - sheet were filed within 90 days from the date of the petitioner's arrest and remand to police custody. It is true that cognizance was not taken by the Special Court on account of failure of the prosecution to obtain sanction to prosecute the accused under the provisions of the PC Act, but does such failure amount to non - compliance of the provisions of S.167(2) Cr.P.C. is the question with which we are confronted. In our view, grant of sanction is nowhere contemplated under S.167 Cr.P.C. What the said Section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so...In our view, the filing of charge - sheet is sufficient compliance with the provisions of S.167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as S.167 Cr.P.C. is concerned. The right which may have accrued to the petitioner, had charge - sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of S.309 Cr.P.C., it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in S.167 Cr.P.C. The scheme of the Cr.P.C. is such that once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. .... Having regard to the above, we have no hesitation in holding that BA 2776, 2842 & 3104 11 notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge - sheet had been filed well within the period contemplated under S.167(2)(a)(ii) Cr.P.C.” Only in the case when a charge sheet is not filed and investigation is kept pending, the benefit of the proviso appended to sub-section (2) of S.167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. On a reading of the provisions contained in S.167(2) of the Code, it can be found that the only contingency under which the accused gets right to be released on bail under that provision is the non-filing of the final report by the investigating officer within the period of sixty/ninety/ one hundred and eighty days, as the case may be. Once the charge sheet is filed within the stipulated period, the right of the accused stands extinguished. I am of the view that such a right, does not get revived merely for the reason that the Court has not taken the case on file and assigned a number. The duty of the prosecution to BA 2776, 2842 & 3104 12 complete the investigation on time end with the filing of the final report. The rest is for the court to do. Nowhere is it said that the cognizance has to be taken forthwith. Hence the fact that the court remanded the accused without assigning a number to the case, will not revive the right to seek statutory bail. Once the final report is filed, the indefeasible right to seek statutory bail without going into the merits of the case comes to an end. Thereafter, the accused is entitled to seek bail on merits. 6. In the instant case, the applicants did not file application for statutory bail prior to the filing of the charge sheet. The application was filed only after the final report was filed and the indefeasible right of the applicants to seek statutory bail got over. It is not going to get revived subsequently. Hence, the applications have no merit. The embargo under section 37(1)(b)(ii) of the NDPS Act prohibits granting of bail in cases where there are no reasonable grounds to believe that the accused is not guilty. In the instant case, the accused were caught red-handed with a commercial quantity of ganja. Hence, on BA 2776, 2842 & 3104 13 merits also, the applicants are not entitled to bail. The applications are dismissed. The trial court shall endeavour to dispose of the case expeditiously. Sd/- **ASHOK MENON JUDGE** jg