Farhan V.S. vs State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 22 [ ND ] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 CRL.MC NO. 3491 OF 2023 ``` ``` To quash order dated 28.3.2023 in Crl.M.P.No. 608/2023 on the files of the Special Court for SC/ST (POA) Act & NDPS Act cases, Manjeri in Crime No. 777/2022 on the files of the Kondotty Police station, Kozhikode District ``` ## **`PETITIONER:`** ``` FARHAN V.S., AGED 22 YEARS, S/O. SAJID V.A., VALIYAKATH HOUSE, SDPY ROAD, NAMBIARPURAM, PALLURUTHY PO, KOCHI, ERNAKULAM - ., PIN - 682006 BY ADVS. JEFRIN JOSE S.SURESH BABU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 BY ADV PUBLIC PROSECUTOR, VIPIN NARAYAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO.3491 OF 2023 ``` ``` : 2 : ``` ## **ORDER** The petitioner is a young man aged 22 years and is the 5th accused in Crime No.777 of 2022 at the Kondotty Police Station. In the aforesaid case, he is facing prosecution for having committed the offence punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. This petition is filed under Section 482 of the Cr.P.C challenging order dated 28.03.2023, by which an application for extension of detention of the petitioner filed by the learned Public Prosecutor under Section 36A(4) of the Act was allowed by the learned Special Judge and further time of three months was granted to complete the investigation. 3. The shorts facts of the case are as follows:- On 28.09.2022 at midnight, the accused Nos.1 to 5 were allegedly found transporting 92.3 grams of Methamphetamine in a car bearing Registration No.KL-71-H-7859. The accused were arrested on 28.09.2022 and were duly remanded. The 180th day of the remand of the accused fell on 27.03.2023. However, much prior to the expiry of the period of detention, on 13.3.2023, an application for extension of ``` CRL.MC NO.3491 OF 2023 ``` ``` : 3 : ``` detention was filed under Section 36A(4) of the NDPS Act. In the application so filed, the investigating officer sought three months' time to conclude the investigation. The learned Special Judge, by the impugned order dated 28.3.2023, considered the report of the investigating officer and granted three months' time to complete the investigation. 4. Sri. Jefrin Jose, the learned counsel appearing for the petitioner, submitted that the order passed by the learned Special Judge cannot be sustained under law. According to the learned counsel, the application for extension of detention under Section 36A(4) was filed on 13.03.2023, and the request of the investigating officer was for the extension of the period by three months. The application for extension was taken up by the learned Sessions Judge on the 178th day, and the matter was posted for orders on the 181st day. However, in a clear turnaround to the assertions in the report for the extension of detention, the final report was filed before the learned Sessions Judge on the 180th day. The learned Sessions Judge, without taking note of the fact that the final report had been laid, proceeded to allow the extension of detention application and extended the period by three months on the 181st day. The learned counsel points out that after the period of extension was granted by the learned Special Judge, the final report was returned for ``` CRL.MC NO.3491 OF 2023 ``` ``` : 4 : ``` curing the defects on 05.04.2023. Later, on 28.04.2023, the final report was resubmitted by the investigating officer after curing the defect. The learned counsel submitted that as the final report was not taken on file by the Court, he orally made an application for statutory bail on the 27th of March, 2023. However, on the ground that the extension application was pending consideration, the same was not entertained. It is submitted that the above sequence of events would disclose that an incomplete charge was filed after seeking an extension of the period of detention solely to deprive the indefeasible rights of the petitioner for statutory bail. The learned counsel would refer to the judgment rendered by the learned Single Judge of this Court in **Vimal K Mohanan & Another V. State of Kerala & Another[ 1 ]** , and it is argued that an incomplete final report was laid to stultify the rights of the petitioner for default bail. It is further submitted that an application for extension of detention under Section 36A(4) of their NDPS Act is not an empty formality, and the public prosecutor has to apply his mind and satisfy as regards the progress of the investigation conducted till that date and the purpose for which further detention was required. In the case on hand, even on the 178th day, the learned Sessions Judge was made to believe that three more months time is required to complete the investigation, but on the 178th > 1 [2023 ICO 338] ``` CRL.MC NO.3491 OF 2023 ``` ``` : 5 : ``` day, the final report was filed. This aspect of the matter is highlighted by the learned counsel to argue that the investigating officer was not fair to the accused and also to the Sessions Court. The learned counsel would also refer to the judgment rendered by the Apex Court in **Rakesh Kumar Paul v. State of Assam[ 2 ] ,** and it was argued that the oral application for statutory bail was liable to be entertained as it was a matter relating to the personal liberty of the accused. The learned counsel would also rely on judgment rendered by the Apex Court in **Judgebir Singh and Ors. v. National Investigation Agency[ 3 ]** and it was argued that if the final report was not filed on the 180th day, the right of the application for default bail would get triggered, and the mere fact that the application for extension of detention was pending before the Court may not be sufficient to deprive of his indefeasible right. According to the learned counsel, the petitioner is just 22 years of age and has been languishing in custody for over 200 days. He would further contend that as far as the specific allegation against the petitioner is concerned only case is that the petitioner was found among the rest of the accused in a car and nothing more. 5. The learned Public Prosecutor has vehemently opposed the > 2 (2017) 15 SCC 67 > 3 2023 SCC OnLine SC 543 ``` CRL.MC NO.3491 OF 2023 ``` ``` : 6 : ``` submission. It is submitted that the accused were engaged in the trafficking of drugs, and according to him, the allegations are extremely grave. It was with the intent to carry out a foolproof investigation that an extension of time was sought after providing all the details. It is submitted that as directions were issued by the Superior Authority to submit the final report, the same was done. It was only when certain defects were noticed that the final report was sought to be returned, and the same was submitted later after curing the defects. It is urged that the contention of the petitioner that an oral application for statutory bail was submitted cannot be accepted as there are no materials to substantiate the same. It is finally submitted that the Final Report having been filed, the petitioner be relegated to approach the Sessions Court and seek regular bail. 6. I have considered the submissions advanced and perused the records. 7. I have detailed the chronology of events in detail above. The records reveal that the 180th day of remand fell on 27.03.2023. The application for the extension of detention was filed on 13.3.2023. Though the application was taken up for orders on 25.3.2023, orders were passed only on 28.3.2023, ie., on the 181st day. The application for extension ``` CRL.MC NO.3491 OF 2023 ``` ``` : 7 : ``` would disclose that the public prosecutor had sought three months' time to complete the investigation. However, curiously, a final report, which turned out to be defective, was submitted on 25.03.2023. 8. This Court had called for a report from the learned Sessions Judge to seek clarity as to whether the charge sheet was laid after Annexure-A3 application was taken up for orders and also as to whether the charge sheet was returned as defective after Annexure-A3 was allowed. In the report dated 19.6.2023 placed before this Court, the learned Sessions Judge has reported that though the final report was filed in the office on 25.3.2023 due to heavy work, the final report was put up for verification only on 5.4.2023. However, at the time of verification, various defects were noted, and hence, clarification was sought. The final report was returned for curing defects on 5.4.2023. After curing of the defect, it was resubmitted only on 28.4.2023. 9. 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 completed within a period of 180 days instead of 90 days as provided under Section 167(2) CrPC. Hence the benefit of an additional time limit is given for investigating a more serious category of ``` CRL.MC NO.3491 OF 2023 ``` ``` : 8 : ``` 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. (See **M. Ravindran v. Directorate of Revenue Intelligence** , (2021) 2 SCC 485]. It is clear from the provisions that the Public Prosecutor has to diligently apply his mind to every aspect of the investigation in the case and indicates both the progress of the investigation and also the reason for extending the period of detention of the accused beyond 180 days. This is because the personal liberty of the accused hinges on the application of mind by the learned public prosecutor. He cannot be a mere mouthpiece of the prosecution at the time of filing an application but has to independently apply his mind. What is discernible in the instant case is that the prosecutor was also kept in the dark by the investigating officer and, after persuading him to file an application for an extension by furnishing some details, proceeded to submit the final report before the Court on the 178th day. When the entire sequence of events is appreciated, it is clear that the attempt was only to scuttle the rights of the accused and nothing more. In **Achpal alias Ramswaroop and Another v State of** ``` CRL.MC NO.3491 OF 2023 ``` ``` : 9 : ``` **Rajasthan[ 4 ]** , it was held by the Apex Court that when the Charge Sheet was returned by the Court, there would be no charge sheet, and the accused would be entitled to default bail. It appears that the prosecution was under the impression that the application for extension would not be allowed by the Court, and it was by way of abundant caution that after the hearing of the application under section 36A(4) and when the matter was posted for orders they approached the court and submitted the final report, which after the application for extension was granted, was taken back. Thus there appears to be considerable force in the submission of the learned counsel that the intent was only to deprive the petitioner of his indefeasible right. After taking back the final report on 05.04.2023, the same was resubmitted only on 28.04.2023. Thus mala fides is writ large on the actions of the investigating officer. 10. The petitioner has a case that he had submitted an oral application for statutory bail before the Court. It is his case that during the intervening period between the 178th - 181st day and the passing of the orders for extension of detention on the 182nd day, the petitioner had acquired an indefeasible right. In **Rakesh Kumar Paul v. State of Assam[ 5 ] ,** the Apex Court has held that in matters of personal liberty and > 4 (2019) 14 SCC 599 > 5 (2017) 15 SCC 67, ``` CRL.MC NO.3491 OF 2023 ``` ``` : 10 : ``` Article 21 of the Constitution, it is not always advisable to be formalistic or technical. It was further held that whether the accused makes a written application for “default bail” or an oral application for “default bail” is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed, and whether the accused is prepared to furnish bail. In the case on hand, though the final report was submitted initially on 25.3.2023, the learned Sessions Judge appears to have not been aware of the submission of the same and proceeded to consider the extension application. At this juncture, it would be relevant to note that the grant of extension becomes immaterial as and when a final report is laid before the court. Curiously enough, in the instant case, the learned Sessions Judge proceeded to allow the extension application on the 181st day in spite of the fact of the submission of the final report. No whisper is also made in the order as regards the submission of the final report. In **Dinesh Dalmia v. CBI** [(2007) 8 SCC 770], the Apex Court had occasion to observe as follows in paragraphs Nos. 24 and 25 of the judgment. **24.** Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would ``` CRL.MC NO.3491 OF 2023 ``` ``` : 11 : ``` be 24 hours, but, in some cases, it may not be practically possible to do so. Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done within the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor. **25.** Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and - the investigating officer has submitted the charge sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to CBI, sufficient materials are already available for prosecution of the appellant. According to it, further investigation would be inter alia necessary on certain vital points, including end use of the funds.( emphasis supplied ) **==> picture [429 x 34] intentionally omitted <==** 11. The Apex Court has held that whether an investigation, in fact has remained pending and the investigating officer has submitted the charge-sheet only with a view to curtail the right of the accused would essentially be a question of fact. In view of the discussion above, I find that after filing an application for an extension under section 36A(4) of the Act by three months to complete the investigation, an incomplete final report was laid on the 178th day, which was returned after verification on 5.04.2023, by stating defects. This cannot be regarded as a final report at ``` CRL.MC NO.3491 OF 2023 ``` ``` : 12 : ``` all. This is very evident that the report was filed with a view to scuttle the rights of the petitioner. The petitioner, having submitted an oral application, the Court was bound to consider the same and take a decision. The extension of detention has been allowed only on the 181st day. The investigating authority is under a constitutional duty to expedite the process of investigation within the stipulated time, failing which the accused is entitled to be released on default bail. Default bail is not merely a statutory right but a fundamental right that flows from Article 21 of the Constitution of India. In that view of the matter, the order passed by the learned Sessions Judge granting an extension of detention cannot be sustained under law. 12. In **Judgebir Singh** (supra), the Apex Court had occasion to refer to the law laid down in **Jigar** (supra) and **Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi)[ 6 ]** and issued the following directions as an eye-opener litigation for the NIA /State Police. Reference to paragraphs No. 76 and 77 would be apposite. 76. As is evident from the chronology of dates and events referred to in the earlier part of our judgment, the final report under Section 173(2) of the CrPC was filed in the Court of SDJM, Ajnala on 15.11.2019. 15.11.2019 was the 161st day from the date of arrest of two of the appellants before us, namely, Jasbir Singh and Varinder Singh. They > 6 [(2012) 12 SCC 1] ``` CRL.MC NO.3491 OF 2023 ``` ``` : 13 : ``` were the first to be arrested on 08.06.2019. The Punjab Police applied to the Court of the Additional Sessions Judge, Amritsar, for extension of time to complete the investigation invoking the proviso to Section 43D(2)(b) of the UAPA on 04.09.2019. When this application for extension of time was filed only two days were left for 90 days to expire. This is suggestive of the fact that the 91st day would have fallen on 07.09.2019. What is important to highlight is that the Additional Sessions Judge, Amritsar, looked into the extension application dated 04.09.2019 filed by the Punjab Police and ultimately, extended the time limit vide its order dated 17.09.2019 i.e., on the 101st day. By the time, the Additional Sessions Judge, Amritsar, passed an order extending the time, the period of 90 days had already expired. Indisputably, there was no chargesheet before the Court on the 91st day i.e., on 07.09.2019. The reason why we say that this is a grey area is because what would have happened if the appellants Jasbir Singh and Varinder Singh had preferred an application seeking statutory/default bail under Section 167(2) of the CrPC on the 91st day i.e., on 07.09.2019. The application seeking extension of time was very much pending. The Additional Sessions Judge could not have even allowed such application promptly i.e., on or before the 90th day without giving notice to the accused persons. The law is now well settled in view of the decision of this Court in the case of Jigar alias Jimmy Pravinchandra Aditya v. State of Gujarat reported in 2022 SCC OnLine SC 1290 that an opportunity of hearing has to be given to the accused persons before the time is extended up to 180 days to complete the investigation. The only error or lapse on the part of the appellants Jasbir and Varinder Singh was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such application would have been filed, the court would have had no option but to release them on statutory/default bail. The Court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. That again would have been something ``` CRL.MC NO.3491 OF 2023 ``` ``` : 14 : ``` contrary to the well settled position of law. This litigation is an eye opener for the NIA as well as the State investigating agency that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment. (emphasis supplied) 77. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. 13. The Apex Court had held that the mere fact that the extension application is pending is no reason for the court to refuse to consider the application for statutory bail, which was pending on the 180th day of remand. 14. In view of the discussion above, this petition will stand allowed, and the order dated 28.3.2023 in Crl. M.P. No.608/2023 granting an extension of detention insofar as the petitioner is concerned stand quashed. The petitioner shall be enlarged on default bail on the following conditions: ``` CRL.MC NO.3491 OF 2023 ``` ## **`: 15 :`** - ( 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 surrender his passport 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. - (c) The petitioner shall not interfere in any manner with the investigation, if any, and shall not make any effort to influence the prosecution witnesses; - (d) The petitioner shall appear before the Investigating Officer as and when required as may be ordered by the Additional Sessions Judge; and - (e) 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. **==> picture [429 x 32] intentionally omitted <==** Sd/- ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** PS /22/8/2023 ``` CRL.MC NO.3491 OF 2023 ``` ## **`: 16 :`** ## **`APPENDIX OF CRL.MC 3491/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1 A TRUE COPY OF THE FIR IN CRIME NO. 777/2022 OF KONDOTTY POLICE STATION Annexure 2 A TRUE COPY OF THE ORDER DATED 22/2/2023 PASSED BY THIS HON'BLE COURT IN B.A. NO. 1351/2023 Annexure 3 A TRUE COPY OF THE PETITION BEARING CRL.MP NO 608/2023 IN CRIME NO. 777/2022 OF KONDOTTY POLICE STATION DATED 13/3/2023 BEFORE THE HON'BLE COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI Annexure 4 A TRUE COPY OF THE OBJECTION DATED 22/3/2023 IN CRLMP NO. 608/2023 ON THE FILES OF THE HON'BLE COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI Annexure 5 CERTIFIED COPY OF THE ORDER DATED 28/3/2023 THUS PASSED BY THE HON'BLE COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI ```