Rashidul Haque v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5758 OF 2024 ``` ``` CRIME NO.22/2024 OF KOTHAMANGALAM EXCISE RANGE OFFICE, ``` ``` ERNAKULAM. ``` ## **`PETITIONER( S )/ACCUSED:`** ``` RASHIDUL HAQUE, AGED 29 YEARS FAKALI PATHAR GRAMAM, JURIA POLICE STATION LIMIT, JAMUGURI VILLAGE, NAGAON TALUK, NAGAON DISTRCT, ASSAM STATE, PIN – 785 603 ``` ``` BY ADV. ``` ``` BEVIN THOMAS ``` ## **`RESPONDENT( S ) :`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 ``` ``` BY ADV. ``` ## **`SRI C.S HRITHWIK (SR.PUBLIC PROSECUTOR)`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.5758 of 2024** **`2`** ## **O R D E R** **Dated this the 05[th] day of August, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, (in short, ‘Code’) by the sole accused in Crime No.22/2024 of the Excise Range Office, Kothamangalam, Ernakulam, which is registered against the accused for allegedly committing the offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested and remanded to judicial custody on 09.05.2024. 2. The gist of the prosecution case is that; on 09.05.2024, at around 10.45 hours, the accused was found in conscious possession of 5.66 grams of heroin. The accused was arrested on the spot with the contraband article. Thus, the accused has committed the above offence. **B.A. No.5758 of 2024** **`3`** 3. Heard; Sri. Bevin Thomas, the learned counsel appearing for the petitioner and Sri. C.S Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offence. The contraband involved in the case is of an intermediary quantity. Therefore, the petitioner is entitled to statutory bail, as the final report has not been laid even after the lapse of 60 days. Hence, the bail application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the petitioner is a person with criminal antecedents, since he is involved in another crime of a similar nature. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Hence, the application may **B.A. No.5758 of 2024** **`4`** be dismissed. Nonetheless, he did not dispute the fact that the petitioner has been in judicial custody for the last 90 days, the investigation in the case is not complete, and the final report has not been laid. 6. The prosecution allegation is that the accused was found in conscious possession of 5.66 grams of heroin. The accused was arrested on the spot with the contraband article. Indisputably, the contraband involved in the case is of an intermediary quantity. The petitioner was arrested and remanded to judicial custody on 09.05.2024, which is more than 90 days. The investigation in the case is not complete and the final report has not been laid. Therefore, in view of Section 167(2) of the Code and Section 36A(4) of the Act, the petitioner is entitled to statutory bail. 7. It is apposite to extract Section 36A(4) of the Act, which reads as follows: “ (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the **B.A. No.5758 of 2024** **`5`** 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” 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.” ## 8. Similarly, Subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- 167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is wellfounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. **B.A. No.5758 of 2024** **`6`** (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— 2 [(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 prepared to and does furnish bail, and every person released on bail under this sub-section 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 **B.A. No.5758 of 2024** **`7`** linkage;] (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. [Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] 9. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in **Sanjay Dutt v.State through C.B.I., Bombay** [(1994) 5 SCC 410] has observed as follows:- "53.(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 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 **B.A. No.5758 of 2024** **`8`** Hitendra Vishnu Thakur 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 challan only by the provisions relating to the grant of bail applicable at that stage." 10. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** [(2001) 5 SCC 453], reiterated the legal proposition in **Sanjay Dutt v.State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) **B.A. No.5758 of 2024** **`9`** 11. In the instant case, the petitioner has been in judicial custody for the last 90 days and the Investigating Officer has not laid the final report till date. Hence, I am convinced that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Sections 36A(4) of the Act and 167(2) of the Code. Hence, I allow the bail application, but subject to stringent conditions: In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade **B.A. No.5758 of 2024** **`10`** them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (v) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (vi) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme **B.A. No.5758 of 2024** **`11`** Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. **Sd/-** **C.S.DIAS, JUDGE** JJ **B.A. No.5758 of 2024** **`12`** ## **`APPENDIX OF BAIL APPL. 5758/2024`** ## **`PETITIONER’S ANNEXURES`** ``` Annexure A1TRUE COPY OF THE CRIME AND OCCURRENCE REPORT. Annexure A2TRUE COPY OF THE ORIGINAL MAHAZAR. Annexure A3TRUE COPY OF THE CONFESSION STATEMENT. Annexure A4TRUE COPY OF THE REMAND REPORT. Annexure A5TRUE COPY OF THE SCANNING REPORT. Annexure A6TRUE COPY OF THE ORDER IN CRL.M.C NO.1656 OF 2024 OF THE HON’BLE FIRST ADDITIONAL DISTRICT AND SESSIONS COURT DATED 30.05.2024. Annexure A7TRUE COPY OF THE ORDER IN CRL.M.C NO.1901 OF 2024 OF THE HON’BLE FIRST ADDITIONAL DISTRICT AND SESSIONS COURT DATED 27.06.2024. ``` //TRUE COPY// PA TO JUDGE