Arshad v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 CRL.MC NO. 6573 OF 2023`** ## **`CRIME NO.711/2022 OF AIROOR POLICE STATION, Thiruvananthapuram IN CRMP 519/2023 OF I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM PETITIONER/2ND COUNTER PETITIONER/2ND ACCUSED:`** ``` ARSHAD AGED26YEARS S/OSHAFI,CHARUVILAPUTHENVEEDU,KARUMBUVILADESOM, NAVAIKULAMVILLAGE,THIRUVANANTHAPURAMDISTRICT, - PIN695603. ``` ``` BYADVM.DINESH ``` ## **`RESPONDENT/PETITIONER/STATE:`** ``` STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOFKERALA, - ERNAKULAM,PIN682031. ``` ``` SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 18.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.6573OF2023 ``` ``` 2 ``` ## **ORDER** The petitioner is the 2nd accused in Crime No.711 of 2022 of the Ayiroor Police Station. In the aforesaid case, he faces prosecution for having committed the offences punishable under Sections 22(c), 27, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ‘NDPS Act”). This petition is filed challenging the order dated 21.2.2023 passed in Crl.M.P.No. 519/2023, by which the learned Additional Sessions Judge has allowed the application filed under Section 36A(4) of the NDPS Act and has extended the detention of the accused by a period of 180 days. 2. In this context, it would be apposite to mention at this juncture that the accused Nos. 1 and 4 had earlier approached this Court challenging the very same order, and this Court, after considering the entire facts, had by Annexure-F order dated 12.7.23 in Crl.M.C.No. 4297 of 2023 and connected cases concluded that the procedure adopted by the learned Sessions Judge was not in order. This Court had also held that the accused were not put on notice as regards the filing of the application for extension, and their presence was not secured at the time of consideration of the order. After perusing the identically worded order of the learned Sessions Judge, I am of the considered opinion that the petitioner was also not put on notice as regards the filing of the application under Section 36A(4) of the NDPS Act, 1985, and his presence was not secured at the time of consideration of the application. 3. In this context, it would be apposite to refer to paragraphs Nos. 5 to ``` CRL.MCNO.6573OF2023 ``` ``` 3 ``` ## 17 of Annexure-F order, which reads thus: 5. In view of the contentions advanced by the learned counsel for the petitioner, this Court had passed the following order on 27.6.2023 and had called for a report from the learned Sessions Judge. ‘The learned counsel appearing for the petitioners asserted that the petitioners were not informed about the filing of the application for the extension of detention. According to the learned counsel, all that is mentioned in the order is that the request was informed to the accused through the Jail Superintendent and nothing more. It is for the court to ascertain as to whether the information has actually been conveyed, contends the learned counsel. It is further submitted that all that is mentioned is that the accused had not objected to the prayer of the prosecution. Without knowing the prayer, the accused cannot object, contends the learned counsel. Reliance is placed on **Uday Mohanlal Acharya v. State of Maharashtra[1]** and in **M. Ravindran v. Directorate of Revenue Intelligence** ,[2] **Judgebir Singh and Ors. v. National Investigation Agency[3]** and **Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat[4] .** In response, it is submitted by the learned Public Prosecutor that the accused were produced through Video Conferencing, and they had not offered any objection to the request. The Registry is directed to get a report from the learned Sessions Judge as to whether the learned Sessions Judge has ensured whether the information as to the filing of the application for extension of remand was made known to the accused. 6. In response report dated 3.7.2023 was submitted by the learned Sessions Judge. The said report reads thus: ‘With respect to the above reference, I may submit that the report > 1 2001(5) SCC 453. > 2 (2021) 2 SCC 485 > 3 2023 SCC OnLine SC 543 > 4 [2022 KHC 7011]. ``` CRL.MCNO.6573OF2023 ``` ``` 4 ``` filed by the Additional Public Prosecutor U/s.36A(4) of the NDPS Act on 16.02.2023 was taken as C.M.P.519/2023 on the file of this Court. It was posted for hearing before my learned Predecessor in Office on 17.02.2023, However, from the records, it is seen that it was not taken for hearing on that day. Thereafter, the matter was taken up and allowed as per Order dated 21.02.2023. From the records, it is seen that no notice of the report was directly served on the accused or their counsel. It is also not discernible from the record as to the manner in which the accused were informed as regard the filing of the application U/s.36A(4). The present bench clerk is also not aware of the same. According to the confidential Assistant of this Court, she was present in the Court hall, and the contents of the report were stated to the accused through the superintendent of the jail. It is also stated by her that when the accused were produced through video conference, they were asked whether they have any objection to the said report. The above facts are respectfully submitted.’ 7. It was thereafter that the proceedings sheet was placed before this Court. As it was borne out from the report that the application for extension of detention had come up on 17.2.2023, and the same was allowed on 21.2.2023, and as these aspects are not seen recorded in the proceedings sheet, another report was called for by this Court. The said order dated 10.7.2023 reads as under: “In response to the directions issued by this Court, a report of the learned Additional Sessions Judge is placed before this Court. 2. The report reads thus: ‘With respect to the above reference, I may submit that the report filed by the Additional Public Prosecutor U/s.36A(4) of the NDPS Act on 16.02.2023 was taken as C.M.P.519/2023 on the file of this Court. It was posted for hearing before my learned Predecessor in Office on 17.02.2023. However, from the records, it is seen that it was not taken for hearing on that day. Thereafter, the matter was taken up and allowed as per Order dated 21.02.2023. From the records, it is seen that no notice of the report was directly served on the accused or their counsel. It is also not discernible from ``` CRL.MCNO.6573OF2023 ``` ``` 5 ``` the record as to the manner in which the accused were informed as regard the filing of the application U/s.36A(4). The present bench clerk is also not aware of the same. According to the confidential Assistant of this Court, she was present in the Court hall, and the contents of the report were stated to the accused through the superintendent of the jail. It is also stated by her that when the accused were produced through video conference, they were asked whether they had any objection to the said report.’ 3. Sri. Prem Navaz, the learned counsel appearing for the petitioner has placed before this Court the proceeding sheet in Crime No. 711/2022. The postings from 27.01.2023 to 24.02.2023 and the proceedings which occurred on that day as detailed in the proceeding sheet are as under: ||27/01/2023|A1, A2,A3,A4 and A9 produced through<br>V.C. Remand extended till 10/02/2023| |---|---|---| ||10/02/2023|A1 to A4 and A are produced via V.C.<br>Remand extended to 24/02/2023| ||24/02/2023|A1 to A4 and A are produced via V.C.<br>Remand extended to 10/03/2023| The proceeding sheet does not tally with the report of the Additional District and Sessions Judge, which is placed before this Court. It does not appear that the presence of the accused was secured either on 17.2.2023 or on 21.2.2023. Registry shall get a report from the learned Sessions Judge with regard to the above fact.” 8. In response, the learned Sessions Judge has submitted the following report dated 11.7.2023. The said report reads thus: “With respect to the reference 1st cited above, I may submit the following. The proceedings details shown in the Order 1st cited above are ``` CRL.MCNO.6573OF2023 ``` ``` 6 ``` with respect to the main proceedings in the above said crime. The proceedings dated 17.2.2023 were recorded in the report filed by the Additional Public Prosecutor u/s. 36A(4) of the NDPS Act (C.M.P.519/2023). The proceedings sheet of CMP 519/2023 does not reveal that the accused were produced or that notice of the report was directly served on the accused or their counsel. It also does not reveal the manner in which the accused were informed as regarding the filing of the application u/s. 36A(4).” 9. I have considered the submissions advanced. 10. Section 36-A(4) of the Act, insofar as it is relevant, reads as under: 36-A. Offences triable by Special Courts.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), ## xxxxx xxxxx xxxxx (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to ‘ninety days’, where they occur, shall be construed as reference to ‘one hundred and eighty days’: Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. ## xxxx xxxxxxx xxxxxxxx 11. Section 36-A of the NDPS Act prescribes a modified application of the Cr.P.C. as indicated therein. The effect of sub-section (4) of Section 36-A, NDPS Act, is to require that investigation into certain offenses under the NDPS Act be ``` CRL.MCNO.6573OF2023 ``` ``` 7 ``` completed within a period of 180 days instead of 90 days as provided under Section 167(2) Cr.P.C. Hence the benefit of an additional time limit is given for investigating a more serious category of offenses. This is augmented by a further proviso that the Special Court may extend the time prescribed for investigation up to one year if the Public Prosecutor submits a report indicating the progress of the investigation and giving specific reasons for requiring the detention of the accused beyond the prescribed period of 180 days. ( **M. Ravindran v. Directorate of Revenue Intelligence**[5] ). 12. For clarity, the conditions that should be satisfied while considering the application for extension under Section 36A(4) are: - (1) 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. (See **Sanjay Kumar Kedia v** - **Intelligence Officer, Narcotics Control Bureau and Another[6]** ). 13. In **Sanjay Dutt** (supra), the question before the Constitution Bench was whether the notice to the accused of the application for the extension as contemplated by the decision in the case of **Hitendra Vishnu Thakur** (supra) was a written notice. The Constitution Bench answered the issue as under: “53. (2)(a) S.20(4) (bb) of the TADA Act only requires production of the accused before the Court in accordance with S.167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of Sub-section (4) of S.20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the > 5 (2021) 2 SCC 485 > 6 (2009) 17 SCC 631 ``` CRL.MCNO.6573OF2023 ``` ``` 8 ``` accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose.” 14. Their Lordships held that before the grant of extension of detention, written notice to the accused giving reasons thereon is not contemplated. All that is contemplated to safeguard the rights of the accused is the production of the accused in court and the furnishing of information that the question of extension for the period for completing the investigation is being considered. - 15.In **Jigar** (supra), the Hon’ble Apex Court reiterated the principles with regard to ensuring the presence of the accused and in informing the filing of the application for extension of detention by observing as follows: 29. As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt, 1994 (5) SCC 410 to the decision in the case of Hitendra Vishnu Thakur, 1994 (4) SCC 602 is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay Dutt, 1994 (5) SCC 410 held that it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the respondents that the accused has no say in the matter, the requirement of giving notice by producing the accused will become an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to sub-section (2) of S.167 of CrPC. It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub-section (2) of S.20 of the 2015 Act to sub-section (2) of S.167 of CrPC. The accused can always point out to the Court that unless it is satisfied that ``` CRL.MCNO.6573OF2023 ``` ``` 9 ``` full compliance is made with the twin requirements, the extension cannot be granted. 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 sub-section (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 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. 16. After considering all past precedents, the Apex Court has encapsulated the law as under : - a) It is mandatory to produce the accused at the time when the Court considers the application for extension, either physically or virtually, and the accused must be informed that the question of extension of the period of investigation is being considered. - b) The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. - c) The accused would be entitled to raise his objection to the application for an extension though the scope of objection may be limited. - d) While raising his objections, it would be possible for the accused to point out that the prayer that has been made by the public prosecutor is without proper application of mind and also that the prosecutor has merely parrotted the version of the investigating officer. The accused can also urge that the Public Prosecutor has not indicated the progress ``` CRL.MCNO.6573OF2023 ``` ``` 10 ``` of the investigation and he has not specifically stated the reason for extending the period of detention of the accused beyond 180 days. The accused can point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension may not be granted. - e) 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 a gross illegality that violates the rights of the accused under Art.21. - f) The Court considering the application for extension is also to bear in mind that the procedure contemplated by Article 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. 17. In light of the principles above, the facts of the instant case can be appreciated. The specific case of the petitioners is that they were not put on notice with regard to the filing of the application and that the order was passed without securing their presence. The order passed by the learned Sessions Judge says that the request of the Prosecutor was informed to the accused through the Jail Superintendent. The order also says that the accused were produced through video conferencing. Rule 73 of the Criminal Rules of Practice, Kerala, every Judge is required to maintain a proceedings paper on Judicial Form No.61 furnishing therein full information as to the several judicial steps taken in the case, such as reasons for adjournments, issue of warrants to the accused or witnesses, marking of documents, examination of witnesses, framing of charges, questioning of the accused, hearing arguments and pronouncing judgment or order. The entries shall be neatly written by the Judge or Magistrate and initialed by him in open court. The proceeding sheet produced before this Court does not disclose that the petitioners were present at the time of consideration of the request for extension. Insofar as notice of intimation of the filing of the application is concerned, all that is mentioned in the order is that the request of the Prosecutor was informed to the accused through the Jail Superintendent. There is no material to suggest that the information was passed on to the accused. The report of the Additional Judge also discloses that in the ``` CRL.MCNO.6573OF2023 ``` ``` 11 ``` proceeding sheet of C.M.P.No.519/2023, it is not recorded that the accused were produced before court or that notice of the report was actually served on the accused or their counsel. In that view of the matter, the order passed by the learned Sessions Judge granting extension of detention cannot be sustained under law. **==> picture [473 x 33] intentionally omitted <==** 4. The petitioner is also entitled to the very same reliefs. 5. Resultantlly, this petition will stand allowed. The order dated 21.2.2023 in Crl. M.P. No.519/2023 granting an extension of detention insofar as the petitioner is concerned are quashed. Crl.M.P.No. 881/2023 filed by the petitioner seeking bail will stand allowed. The petitioner shall be enlarged on default bail on the following conditions: - (a) The petitioner shall furnish a bail bond of Rs.2,00,000/- with appropriate sureties as may be decided by the Additional Sessions Judge. - (b) The petitioner shall not enter the limits of Thiruvananthapuram Revenue District except for appearing before the Investigating Officer or the jurisdictional Court. If any variation of the condition is required, they may move the court having jurisdiction. - (c) The petitioner shall surrender his passports before the learned Additional Sessions Judge. If he is not holding a passport, or if the same has been surrendered in any proceeding, an affidavit to that effect shall be filed. - (d) The petitioner shall not interfere in any manner with the investigation, if any, and shall not make any effort to influence the prosecution witnesses; - (e) The petitioner shall appear before the Investigating Officer as and ``` CRL.MCNO.6573OF2023 ``` ``` 12 ``` when required as may be ordered by the Additional Sessions Judge; and (f) The petitioner shall not involve in any crime while on bail. Violation of any of the conditions above will entitle the investigating officer to move an application for cancellation of bail before the learned Additional Sessions Judge, and if any such application is filed, the same shall be considered, and appropriate orders shall be passed on its merits. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` CRL.MCNO.6573OF2023 ``` ``` 13 ``` ## **`APPENDIX OF CRL.MC 6573/2023`** ``` PETITIONER’SANNEXURES ``` |`Annexure `|`A`|`TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 711/2022`| |---|---|---| |||`OF AYIROOR POLICE STATION DATED 14.9.2022.`| |`Annexure `|`B`|`TRUE PHOTOCOPY OF THE REPORT CMP.NO.519/2023`| |||`DATED 16/02/2023 FILED BY THE ADDITIONAL PUBLIC`| |||`PROSECUTOR BEFORE THE 1ST ADDITIONAL SESSIONS`| |||`COURT, THIRUVANANTHAPURAM.`| |`Annexure `|`C`|`TRUE PHOTOCOPY OF THE ORDER DATED 21/02/2023 IN`| |||`CRL.M.P.NO.519/2023 OF THE ADDITIONAL SESSIONS`| |||`COURT-I, THIRUVANANTHAPURAM.`| |`Annexure `|`D`|`TRUE PHOTOCOPY OF THE BAIL APPLICATION CRL.M.P.`| |||`NO.881/2023 IN CRIME NO.711/2022 OF AYIROOR`| |||`POLICE STATION DATED 14.3.2023 PREFERRED BY THE`| |||`PETITIONER BEFORE THE ADDITIONAL SESSIONS`| |||`COURT-I, THIRUVANANTHAPURAM.`| |`Annexure `|`E`|`TRUE PHOTOCOPY OF THE ORDER DATED 20/03/2023 IN`| |||`CRL.M.P.NO.881/2023 OF THE ADDITIONAL SESSIONS`| |||`COURT-I, THIRUVANANTHAPURAM.`| |`Annexure `|`F`|`TRUE COPY OF THE COMMON ORDER IN CRL.M.C.`| |||`NO.4927/2023 AND CRL.M.C. NO.4520/2023 OF THIS`| |||`HON'BLE COURT DATED 12.7.2023.`|