In the High Court of Kerala at Ernakulam

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE25[TH]DAYOFJULY2023/3RDSRAVANA,1945 CRL.MCNO.5372OF2023 ``` ``` CRIMENO.467/2022OFWalayarPoliceStation,Palakkad ``` ## **`- PETITIONER/ACCUSED NO.1 :`** ``` JITHU,AGED24YEARS S/OJOSEPH,MUTTATHARA,AMBAMKADAVU,KANJIRAM, POONJOLAPOST,KANJIRAPUZHA,MANNARKAD, PALAKKAD,PIN-678598 ``` ``` BYADVS. CIMILCHERIANKOTTALIL MINTUCHERIYAN ``` ## **`RESPONDENT/COMPLAINANT :-`** ``` STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,PIN-682031 ``` ``` BYVIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 25.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C.No.5372/2023 2 ## **ORDER** The petitioner is the 1st accused in Crime No. 467 of 2022 of the Walayar Police Station. In the aforesaid case, he, along with the rest of the accused, face prosecution for having committed the offences punishable under Sections 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ‘NDPS Act”). 2. This petition is filed challenging the order dated 26.4.2023 passed in Crl.M.P.No. 1610/2023 by which the learned Additional Sessions Judge has allowed the application filed under Section 36 A(4) of the NDPS Act and has extended the detention of the accused by a period of 180 days. 3. Short facts leading to the order impugned are as under: a) The above Crime was registered based on the allegation that the petitioner was found in possession of 12.85 gms of MDMA in violation of the provisions of the NDPS Act. It is alleged that the 2nd accused had purchased the contraband from accused Nos. 4 and 5 from Bangalore with the aid of the 3rd accused and the same was entrusted to the 1st accused for the sale. b) The crime was registered on 16.10.22 and the petitioner was arrested on the same day. He was produced before the jurisdictional Crl.M.C.No.5372/2023 3 court and was remanded on 17.10.2022. As the 180th day of remand fell on 14.4.2023, an application under Section 36A(4) of the NDPS Act seeking extension of detention was filed on 12.4.23. The petitioner had also filed Exhibit A5 application for statutory bail on 12.4.23. The learned Sessions Judge by Annexure A4 order allowed the application filed by the learned public prosecutor and extended the period of detention by a period of 180 days by order dated 26/4/2023. As a consequence, the application for statutory bail was rejected by Annexure-A2 order. 4. Sri. Cimil, the learned counsel for the petitioner, submitted that the order passed by the learned Sessions Judge granting extension of detention cannot be sustained under law. Relying on the law laid down by the Apex Court in **Sanjay Dutt v. State[1]** and **Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat[2]** , it is submitted by the learned counsel that the learned Sessions Judge was obliged to inform the accused as regards the filing of an application under Section 36A(4) of the Act and also to insist on the production of the accused at the time when the court considers the application. This, according to the learned counsel, is to enable the accused to formally object to the prayer for the extension. Relying on the law laid down by the Apex Court in **Uday Mohanlal Acharya v. State of Maharashtra[3]** and in **M. Ravindran v. Directorate** > 1 [(2012) 1 SCC 40] > 2 [2022 KHC 7011] > 3 2001(5) SCC 453. Crl.M.C.No.5372/2023 4 **of Revenue Intelligence** ,[4] it was submitted by the learned counsel that the learned Sessions Judge is bound to consider the application for default bail along with the application for extension of time and pass orders together. In the case on hand, Annexure-A5 application for default bail was filed on 12.4.2023, and the same was rejected only on 26.4.2023, after allowing the application for extension of detention on the same day. The learned counsel would then refer to the law laid down in **Judgebir Singh alias Jasbir Singh Samra alias Jasbir and Ors. v. National Investigation Agency[5]** and it was urged that the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding the pendency of the bail application or subsequent filing of the charge sheet or a report seeking extension of time, and the court could not have said that since the extension application is pending, it shall pass orders on the default bail application only after the extension application was decided. 5. In view of the contentions advanced by the learned counsel for the petitioner, this Court had passed the following order on 6.7.203 and sought for a report from the learned Sessions Judge. Sri.Cimil C. Kottalil, the learned counsel appearing for the petitioner, submits that the petitioner was arrested on 16.10.2022 > 4 (2021) 2 SCC 485 > 5 2023 SCC OnLine SC 543 Crl.M.C.No.5372/2023 5 and remanded in Crime No.467 of 2022 of the Walayar Police Station registered for offenses under Sections 22(C) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act. The learned counsel submits that the 180 days of remand expired on 14.4.2023. Seeking extension of the period of detention Crl.M.P No.1610 of 2023 was filed by the learned Public Prosecutor on 12.4.2023. On the same day itself, Crl. M.P No.1627 of 2023 was filed seeking statutory bail. He urges that without passing any order in the application for statutory bail, the application for extension of remand was allowed by order dated 26.4.2023. Relying on the law laid down by the Apex Court in **Sanjay Dutt v State through the C.B.I. Bombay[6]** and **Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat[7]** , it was submitted by the learned counsel that it is mandatory for the Court of Sessions to inform the accused with regard to the filing of an application under Section 36A(4) of the NDPS Act, for extension of period and also to insist for the presence of the accused at the time when the Court considers the application for extension submitted by the learned Public Prosecutor. He pointed out that except for giving the notice of the application, the court did not secure the presence of the accused either virtually or physically on the date on which the application was heard. The learned counsel would then refer to the law laid down in **Judgebir Singh alias Jasbir Singh Samra alias Jasbir and Ors. v. National Investigation Agency[8]** and it was urged that the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding the pendency of the bail application or subsequent filing of the charge sheet or a report seeking extension of time, and the court could not have said that since the extension application is pending, it shall pass orders on the default bail application only after the extension application was > 6 (1994) 5 SCC 410. > 7 2022 SCC Online SC 1290. > 8 2023 SCC OnLine SC 543 Crl.M.C.No.5372/2023 6 decided. According to the learned counsel, in the instant case, orders were passed on the applications for extension as well as the application for the statutory bail only on 26.4.2023. Having regard to the submissions advanced, I direct the Registry to obtain a report from the learned Sessions Judge as to whether the presence of the petitioner was procured either virtually or physically at the time of consideration of the application for extension of remand. The learned Sessions Judge shall also report as to whether an application for statutory bail was pending on the date of expiry of 180 days of remand. ## 6. In response report dated 10.7.2023 was submitted by the ## learned Sessions Judge. The said report reads thus: “As per the reference cited above, the Hon’ble High Court has directed to report as to whether an application for statutory bail was pending of the date of expiry of 180 days of remand. Both Crl. M.P.1610/2023 & Crl.M.C.1627/2023 was made over to this court on 17.4.2023. Heard the counsel for the accused and the public prosecutor in both cases and disposed of on the same day in the presence of the counsel for accused on 26.4.2023 by allowing Crl.M.P. 1610/2023 and dismissing Crl.M.C.1627/2023.” 7. I have considered the submissions advanced. 8. 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 Crl.M.C.No.5372/2023 7 (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 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) 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** Crl.M.C.No.5372/2023 8 ## **Intelligence**[9] ). 10. 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[10]** ). 11. 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 > 9 (2021) 2 SCC 485 > 10 (2009) 17 SCC 631 Crl.M.C.No.5372/2023 9 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.” **==> picture [441 x 33] intentionally omitted <==** 12. 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. 13. 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 Crl.M.C.No.5372/2023 10 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 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 Crl.M.C.No.5372/2023 11 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. ## 14. 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 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. Crl.M.C.No.5372/2023 12 - 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. 15. 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 also does not disclose that the petitioner was put on notice or that their presence was secured on the day on which the matter was taken up for consideration. The report of the Additional Judge also does not disclose that the accused were produced before the 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 an extension of detention cannot be sustained under law. 16. The petitioner has also raised a contention that the 180th day of the extension of remand fell on 14.4.2023, and on that date, the Crl.M.C.No.5372/2023 13 application for statutory bail was pending consideration of the learned Sessions Judge. The application for an extension of detention was ordered only on 26.4.2023. In terms of the law laid down in **M. Ravindran v. Directorate of Revenue Intelligence** , as the application for extension of detention as well as the application for statutory bail was pending on the 180th day, the learned Sessions Judge was bound to consider both applications simultaneously. Orders had to be passed in accordance with the law and in terms of the mandate under Section 36A(4) of the NDPS Act. If the application for extension is allowed, then the statutory bail application will necessarily have to be dismissed. On the other hand, if the application for the extension of detention is rejected, then prompt orders have to be passed on the statutory bail application. In the case on hand, the extension application was allowed only on the 196th day, whereas the statutory bail application was filed and was pending on 15.4.2023, i.e., on the 181[st] day. 17. In a recent judgment rendered by the Apex Court 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)[11]** 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. > 11 [(2012) 12 SCC 1] Crl.M.C.No.5372/2023 14 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 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 Crl.M.C.No.5372/2023 15 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 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. 18. 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. In view of the law laid down in **Judgebir** (supra) **,** the learned Sessions Judge had no option but to allow the application for the grant of statutory bail. Furthermore, admittedly the presence of the petitioner was not procured at the time of consideration of the application for the extension of the remand. As held in **Jigar** , it is mandatory to produce the accused at Crl.M.C.No.5372/2023 16 the time when the Court considers the application for extension and also furnish the information to the accused that the question of extension of the period of detention is being considered. Though the accused has been informed about the filing of the application for extension, his presence was admittedly not procured. 19. In view of the discussion above, this petition will stand allowed. The order dated 26.4.2023 in Crl.M.P. No.1610/2023 granting extension of detention and order dated 26.4.2023 in Crl.M.P.No.1627/2023 rejecting the request for statutory bail are quashed. Crl.M.P.No. 1627/2023 filed by the petitioner 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 Palakkad District except for appearing before the Investigating Officer or the jurisdictional Court. If any variation of the condition is required, he may move the court having jurisdiction. - (c) 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. - (d) The petitioner shall not interfere in any manner with the Crl.M.C.No.5372/2023 17 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 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** Crl.M.C.No.5372/2023 18 ## **`APPENDIX OF CRL.MC 5372/2023`** ## **`PETITIONER ANNEXURES :-`** - **`Annexure A1 TRUE COPY OF THE COMMON ORDER DATED 31-01-2023 IN CRL.M.C.NO.78/2023 OF THE COURT OF THE SESSIONS DIVISION, PALAKKAD`** - **`Annexure A2 CERTIFIED COPY OF THE ORDER DATED 26-04-2023 IN CRIMINAL M.C. NO. 1627/2023 OF THE COURT OF THE SESSIONS DIVISION, PALAKKAD`** - **`Annexure A3 A TRUE COPY OF THE APPLICATION FILED UNDER 36A(4) DATED 12.04.2023`** - **`Annexure A4 A TRUE COPY OF THE ORDER DATED 26.04.2023 PARTLY ALLOWING THE APPLICATION UNDER SECTION 36A(4)`** - **`Annexure A5 A TRUE COPY OF THE BAIL APPLICATION DATED 13.04.2023 NUMBERED AS CRL.M.C.NO. 1627/2023 ON THE FILES OF ADDL. DISTRICT AND SESSIONS COURT-V, PALAKKAD`**