Common Order in Crl.MC 3740/2020 (F); Bail Applications 5310/2020 and 5470/2020 – Sabu and Saneesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942 Crl.MC.No.3740 OF 2020(F)** **AGAINST THE ORDER/JUDGMENT IN CRMC 741/2020 OF DISTRICT COURT & SESSIONS COURT,THRISSUR** **CRIME NO.09/2020 OF Thrissur Excise Range Office , Thrissur** ## **PETITIONER/R2/A2:** **SABU AGED 53 YEARS S/O. KALAN VEETIL PAUL, CHRISTOPHER NAGAR DESOM, OLLUR VILLAGE, THRISSUR 680 306** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT SHRI.ABEL TOM BENNY SHRI.SHINOJ.K.N** ## **RESPONDENT/PETITIONER/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** ## **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** ## **OTHER PRESENT:** ## **SRI.SUMAN CHAKRAVARTHY -SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.8.2020, ALONG WITH Bail Appl..5310/2020, Bail Appl..5470/2020, THE COURT ON 02.12.2020 PASSED THE FOLLOWING:** Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** **Bail Appl..No.5310 OF 2020** **CRIME NO.09/2020 OF Thrissur Excise Range Office , Thrissur** **PETITIONER/A2:** **SABU, AGED 53 YEARSS/O.KALAN VEETTIL PAUL, CHRISTOPHER NAGAR DESOM, OLLUR VILLAGE, THRISSUR, PIN – 680306.** **BY ADVS. SRUTHY N. BHAT SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.P.VIJAYA BHANU (SR.) SRI.AJEESH K.SASI SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SHRI.ABEL TOM BENNY SHRI.SHINOJ.K.N** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM – 682031.** **R1 BY PUBLIC PROSECUTOR R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26.08.2020, ALONG WITH Bail Appl..5470/2020, Crl.MC.3740/2020(F), THE COURT ON 02.12.2020 PASSED THE FOLLOWING:** Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **Bail Appl..No.5470 OF 2020** **CRIME NO.09/2020 OF Thrissur Excise Range Office , Thrissur** **PETITIONER/ACCUSED:** **SANEESH, AGED 32 YEARS PUTHENPURAKKAL HOUSE, PUTHOOR VILLAGE, PUTHUR DESOM, THRISSUR THALUK, PIN – 680014.** **BY ADV. SRI.VINAY RAMDAS** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM – 682031.** **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER R1 BY DIRECTOR GENERAL OF PROSECUTION** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26.8.2020, ALONG WITH Bail Appl..5310/2020, Crl.MC.3740/2020(F), THE COURT ON 02.12.2020 PASSED THE FOLLOWING:** Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 4 ## **COMMON ORDER** **[ Crl.MC.3740/2020, Bail Appl..5310/2020 and Bail Appl..5470/2020 ]** **Dated this the 2nd day of December 2020** The Crl. MC is filed under Section 482 Cr.P.C against the Common Order of the learned Sessions Judge, Thrissur, in Crl. MC No.741/2020 and Crl. R.P. Nos 1493/2020 and 1508/2020 on the files of the Court granting extension to the prosecution to complete investigation beyond the period of 180 days in CR No.09/2020 of Excise Range Office, Thrissur under Section 36-A(d)(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) and declining to grant statutory bail to the two accused in the aforesaid Crime. The aforesaid bail applications are filed by accused numbers 2 and 1, respectively, under Section 439 Cr.P.C. 2. The aforesaid Crime was registered by the Excise Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 5 Range Officer, Thrissur against the accused alleging offences punishable under Sections 20 (b) (ii)C and 29 of the NDPS Act. The prosecution case, in brief, is that on 14/02/2020 at about 3:30 AM the Excise Intelligence and Investigation Bureau received a discreet information regarding transportation of Ganja along the Vadakkanchery – Mannuthy National Highway. They intercepted a lorry bearing registration No.TN-38-BH9509 owned and driven by the 2[nd] accused with the 1st accused as the cleaner. 61.730 Kgs of Ganja was detected and seized from the cabin of the lorry. The accused were arrested and remanded to judicial custody. The investigation is not yet completed. The accused would complete 180 days in custody on 12/08/2020. 3. The District Government Pleader filed a petition seeking extension of time to complete investigation under Section 36 A (d) (4) of NDPS Act on 07/08/2020. The lorry involved in the Crime is registered at the RTO, Coimbatore in the name of the 2[nd] accused. In the confession statement given by the 2[nd] accused, he has stated that the address at the Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 6 Coimbatore was provided by him for the purpose of registration of the vehicle and that it is his temporary address. Because of the restrictions following the pandemic Covid 19, the investigating officer was not able to go to Coimbatore to conduct the investigation pertaining to the ownership of the lorry and the address provided by the 2[nd] accused in the Registration Certificate of the lorry. The call details of the mobile phones used by the accused are being verified to find out the details of the persons they had contacted. A1 has confessed that the ganja was brought for the purpose of being handed over to a person named Nifin at Mannuthy. Because of the lockdown following the pandemic, the investigating officer was not able to proceed with the investigation on the basis of the call records retrieved from the mobile phones of the accused. The chemical analysis report is also awaited. Investigation with regard to the source of the contraband ganja was not possible because of the spread of the pandemic. In case the accused are released on bail, it would adversely hamper the investigation of the case, and hence, the learned Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 7 Public Prosecutor seeks extension of the time to complete investigation beyond the statutory period of 180 days. 4. The accused filed applications for bail on 11.08.2020 stating that the investigation has not been completed and that they would be completing 180 days in custody by 12.08.2020 and therefore, seek statutory bail under Section 167 (2) Cr.P.C since the final report on completion of investigation has not been filed. 5. The learned Sessions Judge heard the Public Prosecutor and the counsel appearing for the accused. The counter statement filed by the 2[nd] accused to the extension application and the records were produced. Vide a common order dated 17.08.2020 the extension was granted and the bail applications filed by the accused were dismissed. The accused are aggrieved by the rejection of the bail petitions and granting of extension to complete investigation to the prosecution. 6. Heard the learned Senior Counsel Sri P. Vijayabhanu appearing for A2, Adv.Sri. Vinay Ramadas for A1 and the Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 8 learned Senior Public Prosecutor, Sri.Suman Chakravarthy. Records perused. 7. The learned counsel appearing for the applicants would submit that the indefeasible right of the accused seeking statutory bail could not have been denied since the extension of time to complete the investigation was granted subsequent to the completion of 180 days. The application for extension was filed on 07.08.2020. The learned counsel appearing for the 1[st] accused submits that no notice was given to the accused on the application seeking extension. He relies on the decision in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others. [1994 (4) SCC 602 :1994 KHC 831] and the decision in Sanjay Dutt v. State through C. B. I. , Bombay [1994 KHC 1244 : 1994 (5) SCC 410] in support of his argument that serving of notice on the accused before granting extension of time to complete the investigation is mandatory. In Sanjay Dutt ( supra) it is clarified that the notice contemplated in Hitendra Vishnu Thakur is not a written notice to the accused and it is held thus : Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 9 “(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 CrPC 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 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.” The learned counsel appearing for the accused would then rely upon the decision of the Hon'ble Supreme Court in Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Others [2012 KHC 4627 : 2012 (12) SCC 1] to canvas for the position that the subsequent filing of extension application after the accused Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 10 has exercised his right for statutory bail, cannot be entertained. In the instant case, the application for extension was already filed by the prosecution before the expiry of the statutory period of 180 days. The application for bail was filed subsequently. And hence the situation in the case in hand is not similar to that which arose in Sayed Mohd. Ahmed Kazmi (supra). 8. The learned Senior Counsel appearing for the accused has relied upon a decision of a Single Bench judgment of the Orissa High Court in Iswar Tiwari v. State of Odisha [MANU/OR/0171/2020] to substantiate the argument that the application seeking extension of time in filing charge sheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before the expiry of the statutory period. The learned Senior Counsel submits that in the instant case, the application for extension of time to file charge sheet and the applications for statutory bail were both disposed of vide a common order subsequent to the expiry of the statutory period of 180 days. This according Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 11 to the learned Senior Counsel is inappropriate. 9. The answer to that argument of the learned Senior Counsel could be found in the decision of a Division Bench of this High Court reported in Antony Das v. State [2015 (5) KHC 863 DB], wherein it is held that the application for extension of time to complete investigation and for extension beyond a period of 90 days in a case filed for an offence under the UAPA, even on the 90[th] day, there is no requirement that application for extension shall be allowed before the expiry of the original period of 90 days. Statutory bail can only be considered after the application for extension of time by the prosecution is rejected. In Rambeer Shokeen v. State of NCT of Delhi [AIR 2018 Sc 405 : 2018 KHC 6054], it was held that when extension petition is filed prior to the expiry of the stipulated time and then the application for statutory bail was filed, the Court could on a later date consider the extension and in case that is allowed, the application for statutory bail could be rejected. In the latest decision in M. Ravindran Vs. The Intelligence Officer, Directorate of Revenue Intelligence Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 12 [MANU/SC/0788/2020 : 2020 (6) KLT 127] it was held that the indefeasible right of the accused in getting statutory bail under Section 167 (2) Cr.P.C cannot be frustrated by filing the charge sheet on an application for extension subsequently. In the said case, the application for statutory bail was filed on the 181[th] day in the morning and after it was heard, a complaint was filed by the prosecution in the evening, the same day. That complaint was not sufficient to frustrate the application for statutory bail filed soon after the statutory period contemplated under Section 167(2) Cr.P.C. 10. In the case in hand, the situation is different. The application for extension was filed on 07.08.2020 and the application for statutory bail was filed by the accused on 11.08.2020. The statutory period of 180 days expired on 12.08.2020. Under the circumstances, there was nothing wrong in the learned Sessions Judge considering the applications for extension and bail together at a later date and allowing the extension while disposing the applications for statutory bail. Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 13 11. The learned counsel appearing for the first accused argues that the extension granted by the learned Sessions Judge for the reason that the investigation could not be completed because of the Covid 19 pandemic cannot be accepted in view of the decision of the Hon'ble Supreme Court in Kasi S. v. State Thr. the Inspector of Police, Samaynallur Police, Madurai District [2020 (3) KHC 600] where it is held thus : “25. We, thus, are of the clear opinion that the learned Single Judge in the impugned judgment erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency. The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under S.167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.” Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 14 The situation in the instant case is totally different. Here the extension was sought by the prosecution before the expiry of the statutory period of 180 days. One of the grounds among others stated for seeking extension of time to complete investigation was that due to the lockdown and the pandemic situation the investigating officer could not go to Coimbatore for collecting evidence. The decision in Kasi S. (supra) will not be an impediment in raising the pandemic restrictions as a ground for the prosecution not being able to complete the investigation on time. In the above cited decision, the prosecution did not file the final report within the stipulated time and submitted before the Court that the statutory bail should not be granted because the decision of the Supreme Court would automatically extend the period prescribed for completing the investigation under Section 167 (2) Cr.P.C. That argument was not acceptable to the Hon'ble Supreme Court. 12. In view of the above discussion, I am of the opinion that the learned Sessions Judge was justified in considering the applications for statutory bail and for extension of time to Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 15 complete investigation by a common order. In the result, Crl. MC No. 3740/2020, BA Nos. 5310/2020 and 5470/2020 are dismissed. The jurisdictional Court is directed to earnestly endeavour disposal of the cases expeditiously. **Sd/-** **ASHOK MENON JUDGE** jg Crl.MC 3740/2020, BA Nos.5310 & 5470 of 2020 16 ## **APPENDIX OF Crl.MC 3740/2020** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PETITION DATED 07-082020 FILED BY THE PROSECUTOR BEFORE THE COURT OF THE SESSIONS JUDGE, THRISSUR** ## **ANNEXURE B** **TRUE COPY OF THE COMMON ORDER DATED 1708-2020 IN CRL M.P NOS 1493/2020, 1508/2020 AND CRL.M.C 741/2020, OF THE COURT OF THE SESSIONS JUDGE, THRISSUR.**