Allen Tony Joseph v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944** **CRL.MC NO. 1206 OF 2023** **AGAINST THE ORDER/JUDGMENT CMP 311/2023 OF DISTRICT COURT &** **SESSIONS COURT, ERNAKULAM** ## **PETITIONER/5TH ACCUSED** **ALLEN TONY JOSEPH AGED 33 YEARS VADAKKAL HOUSE, PRADEEKSHA NAGAR, THOPPUMPADY P.O, THOPPUMPADY VILLAGE, ERNAKULAM., PIN - 682005 BY ADVS. ASHIK K.MOHAMED ALI MUHAMMED RIFA P.M. RAMSEENA N.** ## **RESPONDENT/STATE** **STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, ERNAKULAM , REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031** ## **OTHER PRESENT:** **sr.pp.renjith george** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **17.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 1206 of 2023 2 ## **O R D E R** Dated this the 17[th] day of February, 2023 The petitioner is the 5[th] accused in Crime No.731 of 2022 of Palarivattom police station, registered for offences punishable under Sections 8 and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The crime is registered on the allegation that, on 19.07.2022 at about 11.55 p.m, the Sub Inspector of Police found 102.04 grams of MDMA, concealed in a zip cover on a scooter parked on the western side of the Stadium Link road. The contraband was seized and the 1[st] accused arrested. Based on the statement of the 1[st] accused, the other accused were also arrested. The petitioner was arrested on 05.08.2022 and is in custody since then. Although, successive applications for bail were moved before the Sessions Court, they were dismissed as per Annexures A2, A3 and A4 orders. Applications for bail filed before this Court were also dismissed as per Annexures A5 and A6. While so, the learned Public Prosecutor moved an Crl.M.C No. 1206 of 2023 3 application under Section 36A(4) of NDPS Act seeking extension of the time limit of 180 days stipulated for completing the investigation. The petitioner preferred Annexure A8 objection, contending that the progress of investigation and reasons for extension, which are the essential in an application seeking extension are absent in Annexure A7. Despite the objection, the Sessions Court extended the period for completion of investigation upto 10.03.2023. Aggrieved, this Crl.M.C. is filed. 3. Learned counsel for the petitioner referred to Annexure A7 to contend that no valid reason is stated for extending the period of investigation. It is submitted that as per Section 36A(4), the prosecution has to clearly state the progress of investigation and the reasons, based on which, extension is being sought. Reliance is placed on the decision in _**Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer Narcotic Control Bureau and another**_ [2009 (17) SCC 631], to contend that the conditions specified in Section 36A(4) have to be satisfied Crl.M.C No. 1206 of 2023 4 for extending the period of investigation beyond 180 days. In the absence of any such satisfaction being reflected in the impugned order, the same is liable to be quashed, is the final contention. 4. On a query raised by the Court as to whether the petitioner was produced before the Sessions Court at the time of extension, the learned Counsel asserted that the petitioner was not produced. 5. Learned Public Prosecutor contended that the requirements of Section 36A(4) are clearly set out in Annexure A7 by stating the progress of investigation and the reasons for seeking extension. It is submitted that the 6[th] accused is a Nigerian citizen and the 7[th] accused, a citizen of Ghana. Being so, a detailed investigation is required to find out the source of the contraband and to unearth the international links. 6. In spite of the assertive submissions by the learned counsel for the petitioner that cogent reasons are not forthcoming in Annexure A7, I find satisfactory reasons to Crl.M.C No. 1206 of 2023 5 have been stated. As such, the challenge on that ground is liable to be rejected. 7. Having held so, a question arises as to whether the requirement of producing the accused at the time of extension was complied with. Here, I take note of the assertion of the counsel for the petitioner that the petitioner was not produced before court while the petition for extension was being considered. In this regard, Explanation II to Section 167(2) explaining the manner in which the fact regarding production of the accused can be proved assumes relevance. Hence the said proviosion is extracted herein below: “Explanation II – If any question arises whether an accused person was produced before the Magistrate as required under Clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.” In the case at hand, there is no material as provided in the explanation above and therefore it has to be assumed that Crl.M.C No. 1206 of 2023 6 the accused was not produced, either physically or virtually, while the prosecution's application for extension was considered. 8. In order to consider the impact of such nonproduction, it is apposite to refer to Section 167(2)(b) extracted hereunder: “(b): No Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.” A plain reading of the provision shows that unless the accused is produced, the court cannot order further extension of his detention. The said mandate is equally applicable to the extension under Section 36A(4). 9. In _**Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer Narcotic Control Bureau and another**_ [2009 (17) SCC 631], it is held as follows: Crl.M.C No. 1206 of 2023 7 “9. The maximum period of 90 days fixed under Section 167(2) of the Code has been increased to 180 days for several categories of offences under the Act but the proviso authorizes a yet further period of detention which may in total go upto one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are I) a report of the public prosecutor. - 2) which indicates the progress of the investigation, and - 3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and - (4) after notice to the accused.” 10. The Apex Court had occasion to consider the question again in _**Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat**_ [2022 KHC 7011] _**,**_ the relevant portion of which is extracted below: “30.The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by subsection (2) of S.20 of the 2015 Act and that may amount to violation of rights conferred by Art 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Art.21 of the Crl.M.C No. 1206 of 2023 8 Constitution. The procedure contemplated by Art.21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Art.21. The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Art.21. 31. An attempt was made to argue that the failure to produce the accused will not cause any prejudice to him. As noted earlier, the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail. It takes away the right of the accused to raise a limited objection to the prayer for the extension. The failure to produce the accused before the Court at the time of consideration of the application for extension of time will amount to a violation of the right guaranteed under Art.21 of the Constitution. Thus, prejudice is inherent and need not be established by the accused.” 11. In view of the above settled legal position, the Sessions Court could not have ordered extension of the statutory time limit without ensuring the presence of the accused. Hence, I am constrained to quash the impugned order, as against the petitioner. Crl.M.C No. 1206 of 2023 9 12. Before parting with the case, I wish to alert the investigating officers that they will be failing in their duty by filing half-baked applications under Section 36A(4) and by not producing the accused while applications for extension are considered. At times, it may also appear that such failures are deliberate, resulting in the extension being denied and the accused enlarged on bail. The Public Prosecutors have a duty to prepare the applications in compliance of the requirements of the provision rather than copying the statement is provided by the investigating officers. The Special Courts also have a duty to consider the extension applications, with the seriousness they demand. Any casual approach may have either an adverse impact on the investigation or result in the valuable right of the accused, to be released on default bail, being denied. 13. In the result, Annexure A9 order is quashed. Consequently, the petitioner is found entitled for default bail under Section 167(2) and the following directions are Crl.M.C No. 1206 of 2023 10 issued; (1) If the petitioner moves an appropriate application for bail, he shall be enlarged on bail on executing a bond for Rs.1 lakh (Rupees One Lakh only) with two solvent sureties for the like amount to the satisfaction of the court below. - (2) In the event of bail being granted, the petitioner shall comply with the following conditions; - (i) The petitioner shall surrender his passport and provide his residential address to the court. (ii) The petitioner shall appear before the Investigating Officer every alternate Saturday, between 10.00 a.m and 11.00 a.m. (iv) The petitioner shall not get involved in any crime during subsistence of the bail. Sd/- ## **V.G.ARUN, JUDGE** smm Crl.M.C No. 1206 of 2023 11 ## **APPENDIX OF CRL.MC 1206/2023** ## PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE FIR IN CRIME NO. 731 OF 2022 OF THE PALARIVATTOM POLICE STATION. Annexure A2 TRUE COPY OF THE ORDER DATED 23-82022 IN CRL.M.C NO. 1862 OF 2022 OF THE HONOURABLE SESSIONS COURT, ERNAKULAM. Annexure A3 TRUE COPY OF THE ORDER DATED 22-92022 IN CRL.M.C NO. 2103 OF 2022 OF THE HONOURABLE SESSIONS COURT, ERNAKULAM. Annexure A4 TRUE COPY OF THE ORDER DATED 20-102022 IN CRL.M.C NO. 2213 OF 2022 OF HONOURABLE SESSIONS COURT, ERNAKULAM. Annexure A5 TRUE COPY OF THE ORDER DATED 29-112022 IN BA NO. 8489 OF 2022 OF THIS HONOURABLE COURT. Annexure A6 TRUE COPY OF THE ORDER DATED 02-012023 IN BA NO. 10171 OF 2022 OF THIS HONOURABLE COURT. Annexure A7 TRUE COPY OF CRL.M.P NO. 311 OF 2023 ON THE FILE OF THE HONOURABLE SESSIONS COURT, ERNAKULAM. Annexure A8 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE HONOURABLE SESSIONS COURT ERNAKULAM IN CRL.M.P NO. 311 OF 2023. Annexure A9 CERTIFIED COPY OF THE ORDER DATED 3101-2023 IN CRL.M.P NO. 311 OF 2023 OF THE 1ST ADDITIONAL SESSIONS COURT ERNAKULAM