Rahul Subash v. State of Kerala and Sainul Abid P A

## **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. 1293 OF 2023** **AGAINST THE ORDER/JUDGMENT IN CRMP 1557/2022 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **PETITIONER/S:** RAHUL SUBASH AGED 29 YEARS KALAPPURAKKAL HOUSE, NORTH PADAKULAM KARA, LOKAMALESWARAM VILLAGE, KODUNGALLOOR TALUK, THRISSUR DISTRICT, PIN - 680666 BY ADV IEANS.C.CHAMAKKALA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 SAINUL ABID P A AGED 20 YEARS S/O ABDUL MAJEED, PAROOPPANAKKAL HOUSE THIRUVALLOOR DESOM, ERIYAD VILLAGE KODUNGALLOOR, THRISSUR DISTRICT, PIN - 680666 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** M.C.ASHY- P.P **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **30.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.1293 of 2023 -2- ## **ORDER** Dated this the 30[th] day of March, 2023 The petitioner is the first accused in Crime No.31 of 2021 registered at the Excise Range Office, Aluva for the offence punishable under Section 22(c) r/w Section 29 of the NDPS Act. The crime registered on the allegation that, on 26.12.2021, at about 12.45 p.m, the petitioner along with the second accused was found in possession of 2.983 Kg. of Methamphetamine Hydrochloride. Out of the 2.983 Kgs seized, 2.589 Kgs was seized from the petitioner's possession and 394 grams from the second accused. The petitioner was arrested on the spot and is continuing in custody from 27.12.2021 onwards. As the statutory period of 180 days for completing the investigation was about to be over, the Public Prosecutor filed Annexure A1 application Crl.M.C.No.1293 of 2023 -3- seeking extension of the period by three months. That application filed under Section 36A(4) of the Act was allowed by the Sessions Court as per Annexure A2 order dated 25.06.2022 granting one month's time for completing the investigation. Meanwhile, the petitioner had filed an application seeking statutory bail under Section 167(2)(a)(i) of the Code r/w 36A(b) of the Act. The said application was dismissed as per Annexure A3 order, since the time for completing the investigation had been extended by one month. This Crl.M.C is filed seeking to quash Annexure A2 order 25.06.2022. 2. Learned Counsel for the petitioner submitted that the twin conditions, of indicating the progress of investigation and stating specific reasons for continuing the detention of the accused beyond 180 days were not stated in petition and the Public Prosecutor had merely reproduced the report furnished by the Crl.M.C.No.1293 of 2023 -4- investigating officer. Reliance is placed on the ## decision in _**Jigar @ Jimmy Pravinchandra Adatiya**_ _**v. State of Gujarat [2022 SCC OnLine SC 1290]**_ to contend that Annexure A3 order is liable to be set aside also for the reason that the petitioner/accused was not produced in court while considering and deciding the application for extension submitted by the prosecution. 3. Learned Public Prosecutor submitted that the challenge against Annexure A3 is not sustainable, since the final report is filed. 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 subsequent filing of the final report. To support this contention, reliance is placed on the decision of the Apex Court in _**Ravindran M. v.**_ ## _**Intelligence Officer, DRI [(2021) 2 SCC 485]**_ Crl.M.C.No.1293 of 2023 -5- 5. Going by the indisputable facts, the period of 180 days prescribed for completing the investigation ended on 25.06.2022. The petitioner's bail application was pending on that day. Hence, if Annexure A3 order extending the time limit for completing investigation was not passed prior to 25.06.2022, the petitioner would have been entitled for default bail. Even then, a question arises as to whether the indefeasible right to default bail will continue indefinitely, to be invoked at the sweet will and pleasure of the petitioner. This question assumes relevance, since the order under challenge, extending the time limit for completing the investigation was rendered way back on 25.06.2022. ## 6. In _**Sanjay Dutt v. State through CBI**_ _**[(1994) 5 SCC 410],**_ the Constitution Bench, while rendering its decision on the indefeasible -6- ## Crl.M.C.No.1293 of 2023 right under Section 167, held as follows; _“53. As a result of the above discussion, our answers to the three questions of law referred for our decision are as under: (2)(b) The “indefeasible right” of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the_ Crl.M.C.No.1293 of 2023 -7- _challan only by the provisions relating to the grant of bail applicable at that stage.”_ _[Emphasis Supplied]_ The above view was reiterated in _**Uday Mohanlal**_ _**Acharya v. State of Maharashtra [(2001) 5 SCC**_ _**453], Bikramjit Singh v. The State Of Punjab**_ _**[(2020) 10 SCC 616]** and_ _**Ravindran M.** (supra)._ 7. The learned Counsel is also correct in his submission that the requirement of Section 167 (2)(b) is to produce the accused before the court, either in person or through virtual mode, while considering the prosecution's request for extending the period of his detention. It is also doubtful whether the court below could have granted the extension after finding the details of the investigation conducted after 29.04.2022 to be absent in the petition for extension. Even with all the above infirmities, this Court will not be justified in interfering with Annexure A2 order in view of the inordinate delay in Crl.M.C.No.1293 of 2023 -8- challenging the order. As observed earlier, the impugned order was passed on 25.06.2022, whereas this Crl.M.C is filed only on 10.02.2023, much after the filing of the final report and expiry of the extended period. Absolutely no reason is stated for not challenging Annexure A2 order earlier. Even if no time limit is prescribed for filing Crl.M.Cs, the settled principle that adverse orders should be assailed within a reasonable time, would apply. The accused cannot wake up from his slumber one fine morning and clamour for bail based on the indefeasible right accrued long back. Entertaining these sort of Crl.MCs will also result in chance litigations. For the aforementioned reason, the Crl.M.C is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ Crl.M.C.No.1293 of 2023 -9- ## **APPENDIX OF CRL.MC 1293/2023** PETITIONER ANNEXURES AnnexureA1 TRUE COPY OF THE PETITION IN CRL.M.P NO. 1557/2022 DATED 16-06-2022 AnnexureA2 THE COPY OF THE ORDER IN CRL.M.P NO.1557/2022 DATED 25-06-2022 OF THE SESSIONS COURT, ERNAKULAM AnnexureA3 THE COPY OF THE ORDER IN CRL.M.P NO.1463/2022