Jamshad Ali v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **BAIL APPL. NO. 8261 OF 2022** **CRIME NO.206/2022 OF Kondotty Police Station, Malappuram AGAINST THE ORDER/JUDGMENTCMP 1407/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI** ## **PETITIONER/ACCUSED NO.1:** **JAMSHAD ALI,AGED 33 YEARS S/O. MUHAMMED P., VALAPPIL HOUSE, KARIPPUR, KUMMINIPARAMBA P.O., MALAPPURAM, PIN - 673647** **BY ADVS. MANU TOM BALAMURALI K.P. SHAKKEELA E.J. SHAJI T.M. RENIL IQUBAL K.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **BY PUBLIC PROSECUTOR SRI.M.C.ASHI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.8261 of 2022 2 **VIJU ABRAHAM, J. ................................................................. B.A.No.8261 of 2022 .................................................................** Dated this the 14[th] day of November, 2022 ## **ORDER** This is an application for regular bail. 2. Petitioner is arrayed as 1[st] accused in Crime No.206 of 2022 of Kondotty Police Station, Malappuram which was registered on 03/04/2022 for the offences punishable under Sections 21(C) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ''NDPS Act''). As of now, 4 persons are arrayed as accused in the above case. The petitioner was arrested and remanded on 03/04/2022. 3. The prosecution allegation is that on 03/04/2022 at 01.25 a.m. near Kondotty Bus Stand, the petitioner along with accused No.2 was found transporting 450 grams of brown sugar. It is further alleged that the petitioner and 2[nd] accused were employed and funded by accused Nos. 3 and 4. Thus, the accused had committed the offences under Sections 21(C) & 29 of the NDPS Act. 4. It is submitted that the petitioner had preferred an application for bail before the Special Court for NDPS cases, Manjeri on 30/09/2022 (181[st] day) praying for default bail under Section 167(2) Cr.P.C. as the period of 180 days was over on 29/09/2022 and a petition under Section BA No.8261 of 2022 3 36A (4) was not filed by the prosecution for seeking further time for completing the investigation. However, the Prosecutor had filed such an application in the afternoon session on the same day. 5. On the same day evening, ie. on 30/09/2022 the Special Court for NDPS cases, Manjeri dismissed the bail application of the petitioner, as per Annexure-2 order stating that the petitioner was remanded on 03/04/2022 and the date of remand has to be excluded while computing the statutory period of 180 days and thus, he is not entitled for statutory bail on that day. The Trial Court relied on the judgment in _**Ravi Prakash Singh alias Aravind Singh vs. State of Bihar, 2015(8) SCC 340.**_ 6. It is contended that the trial court had mechanically dismissed the bail application filed by the petitioner and on the other hand allowed the application of the prosecution filed under Section 36A (4) of NDPS Act. As stated earlier, the court below observed that as on 30/09/2022 it is the 180[th] day of the investigation after the first remand and thus the investigating agency’s petition seeking time for investigation is valid and within the time limit. It is respectfully submitted that the court below purposefully ignored the settled position in counting the period of detention as laid down by the Apex Court in _**Chaganti Satyanarayana and others. vs. State of A.P., 1986 (3) SCC 141**_ . The petitioner also relies on the judgment in _**Rakesh Kumar Paul vs. State of Assam, 2017 (4) KHC 470**_ and _**Sabu K.A. vs. CBI, 2020 (2) KLJ 979**_ . It is also contended that the BA No.8261 of 2022 4 provisions of Rule 22 of the Criminal Rules of Practice was not considered by the Trial Court while dismissing the bail application. 7. In _**Chaganti Satyanarayana and Others**_ case supra, the Apex Court was considering the question as to whether for computing the period of 90/60 days envisaged in proviso to Section 167(2) Cr.P.C. whether the date of arrest or the date of order of remand should be taken into consideration and held that the relevant period for consideration would be from the date of order of remand and not the date when accused was arrested. Petitioner also relies on the judgment in _**Harish Babu Maddineni (Dr.) vs. State of Kerala, 2012 (1) KHC 62**_ which held that the time for calculating the period for the purpose of Section 167(2) Cr. P.C. is from the date of remand and not the date of arrest. 8. The learned Public Prosecutor relied on the judgment of the Apex Court in _**Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485**_ to contend for the position that the first day of remand was excluded by the Apex Court in calculating the mandatory period as envisaged in Rule 167(2) Cr.P.C. The learned Public Prosecutor also relied on the order in _**Somasekharan vs. State of Kerala, 2021 SCC OnLine Ker 8392**_ in support of his contention _**.**_ 8. A similar issue came before the Apex Court in _**Enforcement**_ _**Directorate Govt of India vs. Kapil Wadhawan and another etc., 2021 SCC OnLine SC 3136,**_ and finding apparent conflict in the various judgments on the point, has referred the said question for consideration to BA No.8261 of 2022 5 a larger bench and issued directions as to how the court should consider the issue in the interregnum period. Paragraphs 7 and 8 of the said order reads as follows: _**“7.** Because of the conflicting view on the proposition of law for grant of default bail, a judicial conundrum has arisen which is required to be resolved for guidance of the Court. In Chaganti, the Court examined the legislative intent for expeditious conclusion of investigation and the consequences of the failure of the prosecution to conclude investigation within the permitted period. However, the ratio in Chaganti and also in Mohd. Ashraft Bhat was not brought to the notice of the 3 judges bench in M. Ravindran and the Court took a contrary view in declaring that the date of remand is to be excluded for computing the period of investigation, to facilitate the claim of default bail by an accused._ _**8.** Since the earlier position of law was not considered and the latest decision is of a 3 judges bench, it is necessary for a bench of appropriate strength to settle the law taking note of the earlier precedents. Unless the issue is appropriately determined, the courts across the country may take decision on the issue depending upon which judgement is brought to the Court's notice or on the Courts own understanding of the law, covering default bail under Section 167 (2)(a) II of CrPC._ 9. The learned counsel for the petitioner would submit that going by Rule 22 of the Criminal Rules of Practice he is entitled for statutory bail in as much as the said rule mandates that in computing the period of 60 days mentioned in the proviso to Sub-section (2) of Section 167 of the Cr.P.C., both the day on which the remand was made and the day on which the accused is ordered to be produced shall be included. The relevant rule is extracted below: _“In computing the period of 15 days mentioned in Sub section (2) of Section 167 of the Code or the proviso to Section 309 of the code, both the day on which the remand order is made and the day on which the accused is ordered to be produced before the court shall be included. In computing the period of 60 days mentioned in the proviso to sub-section (2) of Section 167 of the code, both the day on which the remand was made and the day on which the accused is ordered to be produced shall be included.”_ BA No.8261 of 2022 6 The Madras High Court in _**R. Henry Paul vs. State of Tamil Nadu, Crl. O.P No. 14316/2021**_ relying on the relevant Criminal Rules of Practice and the order in _**Kapil Wadhwan’s**_ case supra has held that the date of remand is also to be included while considering the statutory period under Section 167 (2) of CrPC. 10. Admittedly, the Criminal Rules of Practice, Kerala, clearly mandates that in computing the period of 60 days mentioned in the proviso to Sub-section (2) of Section 167 of the Cr.P.C., both the day on which the remand was made and the day on which the accused is ordered to be produced shall be included. Even though it speaks about the period of 60 days alone, the intention of the rule making authority is very clear from a reading of the said rules that the day on which the remand was made is to be included. Now coming back to the present case, the petitioner was remanded on 03.04.2022 and the mandatory period of 180 days for filing a final report under Section 167(2) Cr.P.C. is completed on 29.09.2022 and on the next day, i.e. 30.09.2022 petitioner has filed a petition claiming right of default bail as contemplated under Section 167(2) Cr.P.C. Therefore, the finding in Annexure-2 order of the Special Court that 180 days will expire only on 30.09.2022 and not on 29.09.2022, in my opinion goes against Rule 22 of Criminal Rules of Practice. The Apex Court in _**Rakesh Kumar Paul v. State of Assam**_ **, (2017) 15 SCC 67** has categorically held that the right of default bail is a matter of personal liberty flowing from Article 21 of the Constitution of India. Paragraphs 41 and 72 BA No.8261 of 2022 7 ## which are relevant for consideration of issues involved in the present case are extracted below. _**“41.** We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court._ ## _xxxx xxxx_ _**72.** Even if I were to assume that two views are possible and third category envisaged in Section 167(2)(a)(ii) is ambiguous, as suggested by learned Brother Pant, J., then also I have no doubt in my mind that a statute which curtails the liberty of a person must be read strictly. When any human right; a constitutional fundamental right of a person is curtailed, then the statute which curtails such right must be read strictly. Section 167 of the Code lays down the procedure established by law by which a person can be deprived of his personal liberty guaranteed to him under Article 21 of the Constitution of India. If two meanings could be attributed to such a provision then the courts must lean towards liberty and accept that interpretation of the statute which upholds the liberty of the citizen and which keeps the eternal flame of liberty alive. If words are ambiguous then also the court should be reluctant to accept that interpretation which curtails the right of a human being of being free.”_ In view of the above, leaning in favour of an interpretation to the benefit of the accused and on finding that the application for statutory bail has been filed within time and before granting extension of time by the designated court, I am of the opinion that the petitioner is entitled for statutory bail and the bail is granted on the following conditions. (i) The petitioner shall execute a bond for a sum of Rs.1,00,000/(Rupees one lakh only) with two solvent sureties each for the likesum to the satisfaction of the jurisdictional court. (ii) He shall appear before the investigating officer in Crime No. 206 BA No.8261 of 2022 8 of 2022 of Kondotty Police Station, Malappuram, on every Saturday at 11.00 a.m., until completion of the trial. (iii) He shall not attempt to interfere with the investigation or to influence or intimidate the defacto complainant or any witness in Crime No. 206 of 2022 of Kondotty Police Station, Malappuram. (iv) He shall not leave the State of Kerala without obtaining the previous permission of the jurisdictional court. (v) He petitioner shall surrender his passport before the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail. (vi) He shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.206 of 2022 of Kondotty Police Station, Malappuram, may file an application before the jurisdictional court, for cancellation of bail. Sd/- ## **VIJU ABRAHAM** **JUDGE** cks