Muhammed Ajmal G.K. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 CRL.MC NO. 7498 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CMP 1859/2022 OF COURT OF SESSIONS, KASARAGOD** ## **PETITIONER/ACCUSED:** **MUHAMMED AJMAL.G.K AGED 24 YEARS, S/O ABDUL GAFOOR, R/AT CHETTUMKUZHY, MADHUR KASARAGOD TALUK AND DISTRICT PIN - 671121 BY ADV P.RAKESH THAMBAN** ## **RESPONDENT/STATE & DEFACTO COMPLAINANT:** **STATE OF KERALA (ASSISTANT EXCISE COMMISSIONER KASARAGOD), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **SR.PP-SRI.RENJIT GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **30.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 7498 of 2022 2 ## **ORDER** ## **Dated this the 30[th] day of November, 2022** This is a petition filed under Section 482 of the Code of Criminal Procedure and the prayer herein is to quash/set aside Annexure.A2 order in Crl.M.P. No. 1859/2022 extending statutory period of detention under Section 36-A(4) of the NDPS Act from 180 days to 1 year and to set aside Annexure.A3 order in Crl.M.P.No. 4378/2022 dismissing application for default bail application filed by the petitioner. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. The prosecution allegation is that, the petitioner herein who is arrayed as accused No.1 in Crime No.19/2021 along with the other accused, transported 114 kilograms of Ganja in a Maruti Swift Car bearing registration number KL 14 T 2121 at 6.50 pm on 25.11.2021 at Kunjathur Village in Manjeshwar Taluk. 4. The petitioner was nabbed red handedly and has Crl.M.C No. 7498 of 2022 3 been detained in custody. Since the prosecution failed to file Final Report within 180 days, the Prosecutor filed Annexure.A1 petition (Crl.M.P.No.1859/2022) for extension of time. At the same time, the petitioner filed Crl.M.P.No. 4378/2022 for statutory bail. 5. The learned Special Judge under the NDPS Act, Kasaragod, as per Annexure.A2 order allowed Crl.M.P.1859/2022 and thereby extended the period of detention for a period beyond 180 days. Similarly as per Annexure.A3 order the statutory bail application moved by the petitioner was dismissed. 6. The learned counsel for the petitioner pointed out two anomalies while pressing for reversal of the said orders. 7. While assailing these orders, the learned counsel for the petitioner argued that in order to get extension of the period of investigation beyond 180 days, by resorting to Section 36-A(4), it is necessary, for the learned Public Prosecutor, to indicate the progress of investigation and the specific reasons for the detention of the accused beyond the Crl.M.C No. 7498 of 2022 4 said period of 180 days. According to the learned counsel for the petitioner, the petition filed by the learned Public Prosecutor, copy of which produced as Annexure.A1 herein, does not contain the progress of investigation, though there are reasons for the detention of the accused beyond the said period of 180 days. Accordingly, it is argued that the Special court went wrong in allowing Annexure.A1 and dismissing the statutory bail plea of the petitioner, which is an indefeasible right of the petitioner, guaranteed by the Constitution. He has given emphasis to the decisions reported in _**Hitendra Vishnu Thakur and others v. State of Maharashtra**_ [1994 SCC (4) 602], _**Sanjay Kumar Kedia @ Sanjay Kedia Vs.Intelligence Officer, Narcotic Control Bureau & Another**_ [(2009) 17 SCC 631], Unreported Crl.M.C.No. 5412/2022, _**Appukuttan vs. State of Kerala**_ (2013 KHC 3669), Unreported B.A.No.3850/2021 and _**Nayantara Gupta V. State of Maharashtra**_ [2020 SCC Online Bom 873] in support of his contention. 8. Whereas, the learned Public Prosecutor, who Crl.M.C No. 7498 of 2022 5 supported the orders impugned, submitted that, going by the recitals in Annexure.A1 petition dated 20.05.2022 filed by the learned Public Prosecutor, compliance of the mandate of Section 36-A(4) could be gathered and therefore, the orders impugned does not require any interference. 9. Having heard as argued, it is necessary to refer the statutory wordings, and then to the decisions highlighted by the learned counsel for the petitioner. 10. Section 36-A provides as under: “ **36-A.Offences triable by Special Courts** .-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). 2. xxxx ## 3. xxxx 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 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 Crl.M.C No. 7498 of 2022 6 ## 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.” 11. In _**Hitendra Vishnu Thakur’s**_ case (supra), paragraph No.23 dealt with Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, (hereinafter referred as ‘TADA’ for convenience) and it was held as follows: “23. ………………. on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept Crl.M.C No. 7498 of 2022 7 in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek Crl.M.C No. 7498 of 2022 8 extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "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” as occurring in clause (bb) in Subsection (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it Crl.M.C No. 7498 of 2022 9 must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court ‘shall’ release him on bail if he furnishes bail as required by the Designated Court.” ## 12. Again, it was held that, “The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a ‘post office’ of the investigating agency nor its ‘forwarding agency’ but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section Crl.M.C No. 7498 of 2022 10 ## 20.” ## 13. Again, it was held that, “even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his Indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court.” 14. In _**Sanjay Kumar Kedia’s**_ case (supra), the Apex court considered the scope and ambit of Section 36A(4) of the NDPS Act read with Section 167(2) of Cr.P.C. In this decision, the Apex Court considered the decision in _**Hitendra Vishnu Thakur’s**_ case (supra), and held that Section 36-A(4) of the NDPS Act is parimeteria with Section 20(4) of the TADA. In paragraph 10, it has been observed as under: Crl.M.C No. 7498 of 2022 11 “10 The question to be noticed at this stage is as to whether the two applications for extension that had been filed by the public prosecutor seeking an extension beyond 180 days met the necessary conditions. We find that the matter need not detain us as it is no longer res integra and is completely covered by the judgment of this Court in Hitendra Vishnu’s case (supra). In this case, the Bench was dealing with the proviso inserted as clause (bb) in Subsection (4) of Section 20 of TADA, which is parimeteria with the proviso to Sub-section (4) of Section 36-A of the Act. This Court accepted the argument of the accused that an extension beyond 180 days could be granted but laid a rider that it could be so after certain conditions were satisfied.” 15. In the said decision also, the duty of the Public Prosecutor has been extensively discussed while holding that proviso to sub-section (4) of Section 36-A has to be construed in relation to the subject matter covered by the said section. In an unreported decision of this Court in Crl.M.C.No.5412/2022, this Court granted default bail, on the finding that the learned Public Prosecutor did not seem to have applied his mind to the report of the Investigating Officer. In _**Appukuttan’s**_ case (supra), this Court while Crl.M.C No. 7498 of 2022 12 dealing with impact of Section 36-A(4) of the NDPS Act, followed the ratio in _**Hitendra Vishnu Thakur’s**_ case (supra) and _**Sanjay Kumar Kedia’s**_ case (supra) by reiterating the principles. In the other decisions pointed out by the learned counsel for the petitioner also, the same legal position has been reiterated. 16. Thus, the law emerges is that, as per Section 36A(4) of the NDPS Act, in respect of persons accused of an offence punishable under Sections 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”. 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 acting on the report of the Public Prosecutor. The proviso to Section 36-A(4) categorically states that the Public Prosecutor, while making an application for extension of time, shall indicate two aspects Crl.M.C No. 7498 of 2022 13 on applying his mind, viz., (a) the progress of the investigation and (b) the specific reason for the detention of the accused beyond the said period of 180 days and failure to narrate either of the twin aspects, that is, both aspects together would make the said application outside the ambit of the proviso to Section 36-A(4) of the NDPS Act and in such an application, extension of time cannot be granted. 17. The 2[nd] point argued by the learned counsel for the petitioner is that, non issuance of notice with opportunity of hearing to the petitioner at the time when the petition filed under Section 36-A(4) was considered. It is argued by the learned counsel for the petitioner that, as early in the year 1994, the Constitution Bench of the Apex Court in a decision reported in _**Sanjay Dutt Vs. State through CBI, Bombay**_ [1994 (5) SCC 410], [AIR (SCW) 3857], considered the necessity of notice while hearing a petition filed under Section 20(4)(b)(b) of the TADA Act and in paragraph No.47, it has been observed in the said case, referring to _**Hitendra Vishnu Thakur Vs. State of Maharashtra**_ [1994 (4) SCC 602], the Apex Court Crl.M.C No. 7498 of 2022 14 considered the requirement of notice to the accused before grant of extension of time under Section 20(4)(b)(b) of the TADA Act, and held that, notice is the requirement of law. 18. In a latest decision of the Apex Court reported in _**Jigar @ Jimmy Pravinchandra Adatiya Vs. State of Gujarat**_ [2022 LiveLaw (SC) 794], it is held that, following the ratio in **Sunjay Dutt's** and **Hitendra Vishnu Thakur's** case (supra), it is mandatory to produce the accused at the time when the court considers the application for extension and the accused must be informed that, the question of extension of period of investigation is being considered by the court. 19. On perusal of the orders impugned or otherwise the said procedure also not seen to have been complied. In this case, the learned Public Prosecutor filed Annexure.A1 application, runs into ten paragraphs. Even on meticulous reading of Annexure.A1 petition, compliance of the first condition, i.e., indication of progress of the investigation could not be gathered, though it has been stated therein that the 2[nd] accused could not be arrested so far. Thus, it Crl.M.C No. 7498 of 2022 15 has to be held that the application as Annexure.A1 put by the prosecutor is not in terms of the mandate of proviso to Section 36-A(4) of the NDPS Act and therefore, the same cannot be allowed. Further, the accused also not produced before hearing the extention petition with notice of the said fact. the Thus, it is held that the learned Special Judge went wrong in allowing Annexure.A1 application and denying the statutory bail plea of the petitioner herein/the accused. 20. To the contrary, it is held that the statutory bail, an indefeasible right of the petitioner, is liable to be granted since the petition for extension is not in accordance with the statutory mandate. 21. Accordingly, Annexure.A2 order stands set aside and consequently, Annexure.A3 orders stands allowed. The accused shall be released on statutory bail, on the following conditions: 1) The petitioner/accused shall be released on bail, on executing bond for Rs.1,00,000/- (Rupees one lakh only) each by himself and by two solvent sureties to the satisfaction of the Special Judge. Crl.M.C No. 7498 of 2022 16 2) The petitioner/accused shall surrender his passport, if any, before the Special Court on the date of execution of bond, or within a period of three days thereafter, after getting exemption in this regard from the Special Court. If he has no passport, he shall file an affidavit stating so, on the date of execution of bond or within three days’ thereafter. 3) The petitioner/accused shall co-operate with the investigation and he shall be made available for interrogation by the Investigating Officer, as and when directed, till the investigation is complete. 4) The petitioner/accused shall not leave India without prior permission of the Special Court. 5) The petitioner/accused shall not commit any offence during the currency of this bail and any such involvement is a reason to cancel the bail hereby granted. ## **Sd/-** ## **A. BADHARUDEEN JUDGE** SK Crl.M.C No. 7498 of 2022 17 ## **APPENDIX OF CRL.MC 7498/2022** **PETITIONER ANNEXURES ANNEXURE-A1 THE CERTIFIED COPY OF APPLICATION FILED BY THE PROSECUTION U/S 36(A)4 ANNEXURE-A2 THE CERTIFIED COPY OF THE ORDER GRANTING EXTENSION ANNEXURE-A3 THE CERTIFIED COPY OF DISMISSAL ORDER OF DEFAULT BAIL** ## **RESPONDENTS' ANNEXURES : NIL**