JASIM V NASEER v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 CRL.MC NO. 2216 OF 2023** **ORDER IN CRMP 3864/2022 OF II ADDITIONAL SESSIONS** **COURT, ERNAKULAM** ## **PETITIONER/S:** JASIM V NASEER AGED 29 YEARS S/O. NASSER, VADAKKENOLIL HOUSE, OKAY HOSPITAL DESOM, LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK, THRISSUR, PIN - 680664 BY ADV T.H.ARAVIND ## **RESPONDENT/S:** STATE OF KERALA REP. BYPUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 SRI.RENJITH GEORGE, SR.PP **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON 30.03.2023 PASSED THE FOLLOWING:** Crl.M.C.No.2216 of 2023 -2- ## **ORDER** Dated this the 30[th] day of March, 2023 The petitioner is the sole accused in Crime No.41 of 2022 of Excise Range Office, Ernakulam, alleging commission of offences under Sections 20(b)(ii)(A), 22(a), (b) and (c) of NDPS Act. The prosecution allegation is that, at about 4.15 p.m on 28.05.2022, the Excise Enforcement and AntiNarcotic Special Squad seized 1033.79 grams of MDMA, 12.717 grams of LSD, 75.51 grams of Ganja, 0.967 grams of Hashish oil and 18.327 grams of a suspected narcotic drug from 103 parcels sent to 59 addresses from foreign countries. As some of the packages were found addressed to the petitioner, he was arrayed as the accused and arrested on 21.06.2022. As the statutory period of 180 days for completing the investigation was to be over by 18.12.2022, the Public Prosecutor filed Annexure A4 petition under Section 36A(4) of the NDPS Act, seeking extension of the time Crl.M.C.No.2216 of 2023 -3- limit by three months. By Annexure A3 order dated 14.12.2022, the Special Court granted extension by two months from the date of expiry of the statutory period. Even though the petitioner filed an application for bail on 16.12.2022, the application was kept pending till 05.01.2023. In the meanwhile, the 180 days got over on 18.12.2022. Thereafter, by Annexure A5 order dated 05.01.2023, the petitioner's bail application was dismissed. The investigation of the case was completed and the final report filed on 13.02.2023. This Crl.M.C is filed challenging Annnexure A3 order by which the time limit for completing the investigation was extended by two months. 2. Learned Counsel for the petitioner contended that the twin conditions of indicating progress of investigation and stating specific reasons for detention of the accused beyond the period of 180 days was not satisfied and the Crl.M.C.No.2216 of 2023 -4- Public Prosecutor had merely reproduced the report submitted by the investigating officer. Reliance is placed on the decision in _**Jigar @**_ _**Jimmy Pravinchandra Adatiya v. State of Gujarat**_ _**[2022 SCC OnLine SC 1352]**_ to contend that Annexure A3 order is liable to be set aside for non-production of the petitioner/accused in court while extending the period of detention. 3. Learned Public Prosecutor submitted that the challenge against Annexure A3 is not sustainable at this point of time, as the final report is filed. It is submitted that the petitioner's application for bail was rejected by Annexure A5, finding the allegations to be of serious nature and the contraband seized, of commercial quantity. 4. In reply, learned Counsel for the petitioner contended that the indefeasible right to default bail that had arisen on completion of 180 days in custody, will not get extinguished by Crl.M.C.No.2216 of 2023 -5- the subsequent filing of the final report. To support this contention, reliance is placed on the decision of the Apex Court in _**Bikramjit Singh**_ ## _**v State Of Punjab [(2020) 10 SCC 616].**_ 5. The first ground of challenge against Annexure A3 is that the twin requirement in Section 36A(4), of indicating the progress of the investigation and stating specific reasons for detention of the accused beyond 180 days, was not stated in the application for extension. In this context, it is pertinent to note the distinction between the terminology used while setting out the twin requirements under Section 36A(4), based on which alone, the time limit of 180 days for completing investigation can be extended. For convenience, Section 36A(4) is extracted hereunder; “ _36A. Offences triable by Special Courts. - In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving_ Crl.M.C.No.2216 of 2023 -6- _commercial quantity the references in subsection (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.”_ A plain reading of the above provision shows that, while the Public Prosecutor need only indicate about the progress of investigation, he should specifically state the reasons for extending the period of detention of the accused beyond 180 days. The reason stated is that the accused persons had procured parcels containing the contraband from Netherlands by tracking the location of the parcels containing the contraband Crl.M.C.No.2216 of 2023 -7- using the tracking ID in their mobile phones. That, the mobile phones of the accused had been sent for forensic examination and the report of examination is highly essential for collecting further evidence against the accused. Despite the assertive submissions of the counsel for the petitioner, I find the reason stated to be sufficient to have continued the detention of the accused. 6. The second ground of challenge is based on non-production of the petitioner during consideration of the Prosecutor’s request for extending the period of his detention. A perusal of Annexure A3 shows that instead of producing the petitioner in court, his Counsel was given notice. In this regard it is essential to understand the mandate of Section 167(2)(b) of the Code extracted hereunder; “ _**167. Procedure when investigation cannot be completed in twenty-four hours** .—_ Crl.M.C.No.2216 of 2023 -8- _(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— (a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—_ _(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;_ _(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is_ Crl.M.C.No.2216 of 2023 -9- _prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;_ _(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;_ In the nature of the contention urged, it is apposite to consider the decision with regard to the indefeasible right to statutory bail rendered by the Constitution Bench in _**Sanjay Dutt v. State through CBI [(1994) 5 SCC 410]**_ . The final conclusion of the Constitution Bench available at paragraph 53.2.(a) of the judgment reads as under; “ _53. As a result of the above discussion, our_ Crl.M.C.No.2216 of 2023 -10- _answers to the three questions of law referred for our decision are as under:_ … _..._ _(2)(a) Section 20(4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Section 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 Section 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 above position is reiterated in _**Jigar @ Jimmy** (supra)_ . The precedents leave no room for doubt that requirement under Section 167 would be Crl.M.C.No.2216 of 2023 -11- satisfied only by production of the accused and not by giving notice regarding the petition for extension to the Counsel for the accused. 7. The contention that the indefeasible right of the accused for default bail will not survive after filing of the final report, is answered in _**Uday Mohanlal Acharya v. State of**_ _**Maharashtra [(2001) 5 SCC 453]** and_ _**Bikramjit**_ _**Singh** (supra)._ 8. The challenge in _**Uday Mohanlal Acharya**_ _(supra),_ was against the High Court's order refusing to grant bail by invoking Section 167 of the Code on the ground that, by the time the application for bail came up for consideration, the charge sheet had been filed. After detailed precedential survey, the Apex Court held as under in paragraph 13 of the judgment reads as under; _“13........In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative_ Crl.M.C.No.2216 of 2023 -12- _mandate engrafted in the proviso to subsection (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statutebook. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as_ Crl.M.C.No.2216 of 2023 -13- _stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of_ Crl.M.C.No.2216 of 2023 -14- _time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the socalled indefeasible right of the accused on failure on the part of the prosecution to file a challan within the specified period and the interest of the society, at large, in lawfully preventing an accused from being released on bail on account of inaction on the part of the prosecuting agency.”_ ## 9. In _**Bikramjit Singh** (supra)_ , after elaborate consideration of the scope and ambit of Section 167(2), it was held that the right to default bail becomes complete and indefeasible as ## Crl.M.C.No.2216 of 2023 -15- soon as an application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. Earlier, in ## _**Hitendra Vishnu Thakur and others v. State Of**_ ## _**Maharashtra and others [1994 4 SCC 602]**_ , the Supreme Court had held default bail to be a right which inures to and remains enforceable by the accused only from the time of default till the filing of the final report and does not survive or remain enforceable after filing of the final report. 10. Going by the indisputable facts, the statutory period of 180 days for completing the investigation in the petitioner’s case was up to 18.12.2022 and the petitioner's application for bail was pending on that day. Hence, if Annexure A3 order had not been passed on an earlier date, extending the time limit for completing the investigation, the petitioner would have been -16- ## Crl.M.C.No.2216 of 2023 granted default bail on completion of 180 days in custody. The indefeasible right to default bail having arisen, will not get extinguished by the filing of the final report during the extended period. 11. Since the order of extension is found to be illegal, the order rejecting statutory bail cannot survive, the same being a consequential order. As such, the petitioner was liable to be released on default bail on completion of the 180 days. In the result, the Crl.M.C is allowed and Annexure A3 order is quashed. Consequently, the Sessions Court is directed to release the petitioner on bail subject to the following conditions; (i) The petitioner shall execute a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like amount to the satisfaction of the Sessions Judge. (ii) The petitioner shall surrender his Crl.M.C.No.2216 of 2023 **==> picture [23 x 8] intentionally omitted <==** passport, if any, before the Sessions Court on the date of execution of bond, or within a period of three days thereafter, after getting exemption in this regard from the Sessions Court. If the petitioner does not have a passport, he shall file an affidavit stating so on the date of execution of bond or within three days' thereafter. (iii) The petitioner shall co-operate with the investigation and shall make himself available for interrogation by the investigating officer as and when required. **==> picture [381 x 12] intentionally omitted <==** offence during currency of the bail. **==> picture [49 x 13] intentionally omitted <==** ## **V.G.ARUN** ## **JUDGE** Scl/ Crl.M.C.No.2216 of 2023 -18- ## **APPENDIX OF CRL.MC 2216/2023** ## PETITIONER ANNEXURES Annexure1 TRUE COPY OF THE ORDER DATED 27/6/2022 OF THE ADDL.DISTRICT & SESSIONS JUDGE II, ERNAKULAM Annexure2 TRUE COPY OF THE ORDER DATED 30/7/2022 PASSED BY THE ADDL. DISTRICT & SESSIONS JUDGE II, ERNAKULAM Annexure3 CERTIFIED COPY OF THE ORDER PASSED BY THE 1ST ADDL. SESSIONS JUDGE, ERNAKULAM DATED 14/12/2022 Annexure4 TRUE COPY OF REPORT OF THE PUBLIC PROSECUTOR INM P NO. 3864/2022 OF THE DISTRICT & SESSIONS COURT, ERNAKULAM DATED 12/12/2022 Annexure5 TRUE COPY OF THE ORDER DATED 5/1/2023 IN CRIME NO. 32/2022 OF EXCISE ENFORCEMENT AND ANTI-NARCOTIC SPECIAL SQUAD, ERNAKULAM