Karuppai Solamalai and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **Bail Appl..No.9199 OF 2019** ## **C.R.NO.28/2019 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, THRISSUR** ## **PETITIONERS/ACCUSED 1 TO 3:** **1 KARUPPAI SOLAMALAI AGED 34 YEARS S/O. SOLAMALAL, 10A, RAMASWAMY LAYOUT, COIMBATORE SOUTH TALUK, COIMBATORE, TAMIL NADU.** **2 SENTHIL KUMAR, AGED 38 YEARS S/O.JAYARAJ, STREET NO. 1, RANGANATHAPURAM, KANDAMALAIKUNDUR, ANDIPATTI TALUK, THENI DISTRICT, TAMIL NADU.** **3 CHELLADURAI, AGED 38 YEARS S/O. ANNAKODI, VAIGAL NAGAR, KADAMALALKUNDU, ANDIPATTI TALUK, THENI DISTRICT, TAMIL NADU.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI B. JAYASURYA, SR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.9199/2019 3 ## **O R D E R** This application is filed under Section 439 of the Cr.P.C. 2. The applicants herein are accused Nos.1 to 3 in C.R No.28 of 2019 of the Excise Enforcement and Anti Narcotic Special Squad, Thrissur. They have been proceeded against for having committed offence punishable under Sections 20(b)(ii) (c) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The crux of the prosecution allegation is that on 21.5.2019, at about 9.30 a.m., the applicants were found having in their possession 21 kgs. of dry ganja while they were standing outside the entrance of Thrissur Railway Station. 4. The undisputed fact is that the accused were remanded to judicial custody on 21.5.2019. Since the applicants are being proceeded against for having committed offence punishable under Section 20(b)(ii)(C), they are liable for punishment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which may extend to Rs.2 lakhs. 4. Ordinarily, the maximum period of detention during the course B.A.No.9199/2019 4 of investigation, without a charge sheet or challan being filed, would be 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than 10 years. However, by virtue of Section 36A (4) of the NDPS Act, 1985, for offences involving commercial quantity, as in the instant case, the reference in Section 167(2) of the Cr.P.C. thereof to “90 days” shall be construed as reference to “180 days”. In the case on hand, 180 days expired on 17.11.2019. 5. The applicants therefore filed separate applications seeking default bail under Section 167(2)(a)(i) of the Cr.P.C. on 18.11.2019. The application filed by the accused No.1, produced herein as Annexure-A, was numbered by the Sessions Judge as C.M.P.No.4113 of 2019 and the application filed by the accused Nos. 2 and 3 under the same provision was numbered by the learned Sessions Judge as C.M.P.No.4115 of 2019. 6. It is submitted across the bar that the said application came up for hearing before the learned Sessions Judge on 19.11.2019. The applications were posted for hearing on 21.11.2019. On 21.11.2019, an application was filed by the learned Public Prosecutor as C.M.P.No.4163 of 2019 seeking to extend the remand period of 180 days by a further period of 180 days to complete the investigation and to file the final report. B.A.No.9199/2019 5 7. The learned Sessions Judge by the impugned order which is dated 3.12.2019 partly allowed the application filed by the learned Public Prosecutor and the remand of the accused was extended to a further period of 90 days from the date of order. The application filed by the accused for statutory bail was dismissed. 8. The said order is impugned in this petition. 9. Sri.Nireesh Mathew, the learned counsel appearing for the applicants, submitted that the order passed by the learned Sessions Judge cannot be sustained. He contended that the application for default bail was filed by the applicants on 18.11.2019 and on that day, the period of 180 days as fixed under the Code as modified under Section 36A(4) of the NDPS Act had expired. Since the final report had not been laid, the accused had an indefeasible right to be released on bail. Instead of allowing the bail application, the learned Sessions Judge posted the matter on 21.11.2019 to enable the learned Public Prosecutor to file a report seeking to extend the period of remand to 90 days and the order was finally passed on 3.12.2019. The procedure adopted by the learned Sessions Judge is clearly illegal and has defeated the rights of the accused to default bail is the submission. To substantiate his contention, the learned counsel has referred to the decision of this Court in **Union of India v. Thamisharasai and Others** [ 1995 (4) B.A.No.9199/2019 6 SCC 190], **Union of India through CBI v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav [** 2014(2) KLD 237 (SC)] and **Rakesh Kumar Paul v. State of Assam** [2017 (2) KLD 443]. 10. Heard the learned Public Prosecutor who submitted that the applicants are persons hailing from the State of Tamil Nadu and since commercial quantity of narcotic drugs are involved, the investigating officer requires further time to complete the investigation. A report for extension was preferred on 21.11.2019 and the same was allowed. There is no illegality is the submission. 11. I have considered the submissions advanced and have anxiously perused the entire records. 12. The records reveal that the applicants were arrested on 21.5.2019 and they were remanded on the same day itself. The period of 180 days has expired on 17.11.2019. The applicants have preferred their application for statutory bail on 18.11.2019. On that day, the final report had not been laid by the State. Furthermore, no application for extension for remand for a further period was before the learned Sessions Judge on that day. The said application was filed only on 21.11.2019 and this fact is undisputed. It is by now settled that extension application will have to be B.A.No.9199/2019 7 preferred before the expiry of 180 days and this position is settled by the decision of the Apex Court in Nirala Yadav (supra). Had an application for extension preferred before 17.11.2019, the situation would have been different. It is thus obvious that it is in order to frustrate the rights of the accused that an application for remand was filed by the learned Public Prosecutor. I have no doubt in my mind that the learned Sessions Judge has committed a clear illegality in posting the matter on 21.11.2019 to enable the learned Public Prosecutor to file an extension report. Such an act frustrates the legislative mandate. A court cannot act to distinguish the rights conferred to the accused by the statute. The learned Public Prosecutor ought to have been diligent and he should have given reasons indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of 180 days. 13. In Rakesh Kumar Paul (supra), Hon’ble Apex Court traced the long line of decisions and held that the right of the accused to statutory bail is indefeasible. It was held that in matters of personal liberty, the courts should not be too technical and must lien in favour of the accused. The Apex Court had also deprecated the practice of the prosecution as well as some courts in keeping the application for default bail pending to enable the prosecution to prefer a charge sheet. In the case on hand, the records B.A.No.9199/2019 8 eloquently speak for themselves. The learned Sessions Judge kept the application filed on 18.11.2019 pending till 21.11.2019 to enable the learned Public Prosecutor to file an application seeking extension of detention and passed the order dismissing the application on 3.12.2019. 14. Having considered all the facts, I am of the view that the order passed by the learned Sessions Judge is clearly illegal. The applicants were entitled to statutory bail. In the result, this application will stand allowed. The applicants shall be released on bail on their executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions: 1). The applicants shall appear before the Investigating Officer on every Saturdays between 10 a.m. and 1 p.m., for a period of 3 months or till final report is filed, whichever is earlier. 2). They shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence. 3). They shall not commit any similar offence on bail. 4). They shall not leave the State of Kerala without seeking prior permission from the court having jurisdiction. 5) They shall surrender their passport before the court below or if they does not have one, they shall file an affidavit to that effect within five days of their release. Application for release of the passport, if any, shall be considered by the trial court at the B.A.No.9199/2019 9 ## appropriate stage. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** **csl**