RENEEZ v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940 Crl.MC.No. 1016 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 2347/2018 of I ADDITIONAL DISTRICT COURT, TRIVANDRUM CRIME NO. 14/2018 OF Excise Circle Office, Thiruvananthapuram** ## **PETITIONER/S:** **RENEEZ, AGED 39 YEARS, S/O.KHALID, T.C 94/2426, HEERA ARCADE, THAMBURANMUKKU DESOM, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRI.AJEESH K.SASI SRI.M.REVIKRISHNAN SRI.P.M.RAFIQ SRI.THOMAS J.ANAKKALUNKAL,CGC SRI.V.C.SARATH SRUTHY N. BHAT ADV. VIJAYABHANU (SR.)** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **SRI. SAJJU S, PUBLIC PROSECUTOR.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.1016/2019 2 ## **O R D E R** This petition is filed by the 1[st] accused in Crime No.14/2018 of Excise Circle Office, Thiruvananthapuram seeking relief as follows: “For these and other grounds which may be urged at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to allow this Criminal Miscellaneous Case, quash Annexure D order dated 21.11.2018 in Crl.M.P.No.2347/2018 of the Court of the Additional Sessions Judge-I, Thiruvananthapuram and order the release of the Petitioner on bail, so as to secure the ends of justice.” 2. Annexure D order passed by the Additional Sessions Judge-I, Thiruvananthapuram on 21.11.2018 in Crl.M.P.No.2347 of 2018 is sought to be quashed in the petition on hand. By virtue of that order the Additional Sessions Judge-I, Thiruvananthapuram has allowed the application and ordered extension of detention of Accused Nos.1 to 3 in crime No.14/2018 for a period of 180 days from the date of expiry of Crl.M.C.1016/2019 3 initial custody for 180 days. The contention of the learned Senior Counsel, Sri.Vijayabhanu was that application was filed by the Investigating officer as Annexure A before the court concerned on 31.10.2018 seeking extension of custody of accused Nos.1 to 3, within 180 days' of initial custody. The said petition was dismissed by the court concerned on the basis of the submission of the learned public prosecutor that the application will not sustain in view of the dictum laid down by the High Court in **Appukuttan v. State of Kerala (2013 KHC 3669)** that a petition filed by the investigating officer, even if endorsed by the public prosecutor is not sufficient for getting extension of period of detention of accused beyond 180 days. The learned Public Prosecutor sought for dismissal of the petition as withdrawn by him, reserving the right to apply for extension of detention of accused Nos.1 to 3 based on a report to be filed by him lateron. The court concerned dismissed the application, reserving the right to apply for extension by filing a report by the public Crl.M.C.1016/2019 4 prosecutor for the purpose under the proviso to Section 36A(4) of the NDPS Act. Accordingly, another petition was filed by the Additional Government Pleader and Public Prosecutor of the court concerned seeking for extension of period of custody of the accused for one year. A copy of that petition was appended to this proceedings as Annexure C. In that petition, the impugned Annexure D order was passed by the court concerned on 21.11.2018. According to the learned counsel, the report sought to be filed by the Public Prosecutor for getting extension of period of detention of the accused beyond 180 days of initial custody under Section 36A(4) of the NDPS Act is not a mere formality. The Public Prosecutor is not supposed to endorse the views of the investigating officer. He has to apply his mind to the situation of the case and the reasons furnished by the investigating officer for getting extension of detention of the accused beyond 180 days' of initial custody. In the case on hand, the application filed by the learned Public Prosecutor clearly discloses that it is only a re- Crl.M.C.1016/2019 5 production of the same set of facts as stated by the investigating officer in the application moved by him primarily for the purpose and lateron got withdrawn as not pressed. Therefore, it does not demonstrate any application of mind. It is the subjective satisfaction of the Public Prosecutor about the reasons stated by the investigating officer, that matters for consideration when an application is moved seeking extension of detention of the accused beyond 180 days' of initial custody. According to the learned counsel, the contention advanced by him is well supported by the dictums laid by the Apex Court in **Hithendra Thakur and others v. State of Maharashtra and others [1994(4)SCC 602]** and **Sanjay Kedia v.** ## **Intelligence Officer, NCB and others [2009(17)SCC 631]** wherein it was held that the public prosecutor must apply his mind independently to the request of the investigating agency seeking extension of period of detention before submitting a report to the court for the purpose. It was held by the Apex Court in the decisions supra that a public prosecutor may or may Crl.M.C.1016/2019 6 not agree with the reason given with the investigating officer for seeking extension of time and may find that the investigation has not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in investigation. In that event, he may not submit a report before the court seeking extension of period of custody of accused for pursuing with the investigation after 180 days. Annexure C report filed by the learned Public Prosecutor is only a copy of the report moved by the Investigating Officer before the court concerned as Annexure A and therefore, it can be taken to have filed without application of mind by the Public Prosecutor. According to him the Apex Court has directed in the cases cited supra that a report or application seeking extension of time shall be moved by the Public Prosecutor only after arriving at a subjective satisfaction of mind about the relevant facts and grounds based on which, further custody of the petitioner and other accused was sought by the investigating officer. Crl.M.C.1016/2019 7 3. The learned Senior Counsel has invited the attention of this Court to the contents of the application moved by the public prosecutor, copy of which is appended to this petition as Annexure C, wherein it has been stated that the investigation could not be concluded within 180 days, during which period the petitioner was in custody, for the reason that one Mr.Shajimon @ 'Moorkhan Shaji' was informed to have involvement in the crime much later and the necessity has arisen then to add his name in the array of the accused in the crime in question as the 5[th] accused, to arrest him in the crime and to pursue with the investigation. 4. The learned Public Prosecutor has procured a statement from the Assistant Excise Commissioner (Enforcement), Thiruvananthapuram and produced before this Court based on the direction issued by this Court. In paragraph No.5 of the said statement, it was reported by the Assistant Excise Commissioner (Enforcement), Thiruvananthapuram that Shajimon @ Moorkhan Shaji and his allies Melbin and Rajesh were Crl.M.C.1016/2019 8 arrested by the Excise team on 25.10.2018 at Thiruvananthapuram, while the sale of 1.800 Kg of Hashish Oil was in progress. It is also stated that the accused were produced before the court and remanded to judicial custody. Thereafter, Shajimon @ Moorkhan Shaji was arrayed as 5[th] accused in NDPS Crime 14/18 of Excise Circle Office, Thiruvananthapuram, which is the case on hand, wherein extension of custody of the accused including the petitioner was sought for pursuing with the investigation. 5. Therefore, it is evidenced from the statement aforesaid that Shajimon @ Moorkhan Shaji was available in judicial custody in Crime No.19/2018, registered against him by the Excise Circle Office, Thiruvananthapuram at the relevant time, when his involvement in the present crime (Crime No.19/18) was revealed to the investigating agency. They could have very well array him as an accused in the crime in question then and there, record his formal arrest and proceeded with the investigation sufficiently earlier in point of time. Instead of doing that, a bare Crl.M.C.1016/2019 9 reason was stated that the investigation could not be pursued with and completed within the 180 days' of initial custody of petitioner, since Shajimon @ Moorkhan Shaji could not be arrested by them in the crime in question at that point of time. It is also pertinent to note from the statement filed by the investigating officer that the said Shajimon was formally arrested after obtaining him on production warrant on 21.11.2018, the very date on which the impugned Annexure D order was passed by the court concerned. Therefore, it is evidenced that the learned Public Prosecutor, who has filed Annexure C application failed to apply his mind to the veracity of the informations furnished to him by the investigating officer and arrive at his subjective satisfaction in mind of those, while applying for extension of custody. Had he applied his mind independently to the reasons stated by the investigating officer, he could have been apprised of the availability of Shajimon @ Moorkhan Shaji in judicial custody in another crime and the possibility Crl.M.C.1016/2019 10 of the investigation on his involvement in the crime in question, by the investigating officer to be initiated then and there. Therefore, the reasons stated in the application filed by the public prosecutor seeking detention of the petitioner herein in custody beyond the period of 180 days' of his initial detention does not seem to be true and sound ones and therefore the raising of contentions of the nature in the application seeking the relief, by the public prosecutor seems to be without application of mind. The court below failed to advert to the above aspects while passing Annexure D order. It ought not to have allowed Anneuxre C application, wherein a cogent reason was not shown by the public prosecutor for getting the period of detention extended. It appears from the over all scrutiny of the contentions in Annexure C application filed by the public prosecutor when in the backdrop of the statement filed by the public prosecutor before this Court that solely on account of laches on the part of the investigating officer the investigation about the involvement of Crl.M.C.1016/2019 11 Shajimon could not be started even with the availability of him in custody on 25.10.2018 in Cr.No.19/2018. For the laches and negligence on the part of the investigating officer, the right of the accused to be released on bail after completion of 180 days' custody, without a charge sheet against him being filed within that time, cannot be curtailed. It is revealed from the materials containing allegations against the petitioner that he was purchaser in a Hashish Oil trade detected on 25.5.2018. This Court do not find any chance for the investigation into the involvement of Shajimon @ Moorkhan Shaji (A5) to be improved with the detention of the petitioner for another 180 days in custody. In the result, this Crl.M.C stands allowed. Annexure D order to the extent it directs extension of period of custody of the petitioner herein for a period of 180 days from the date of expiry of initial custody of 180 days stands set aside. Since the final report was not filed even after 180 days of initial custody of the petitioner herein, without any Crl.M.C.1016/2019 12 valid reasons furnished by the investigating officer, the petitioner is entitled to be released on default bail. In the result, bail stands granted to the petitioner on executing of a bond by him for a sum of ₹1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the Addl.Sessions Judge-I, Thiruvananthapuram and on deposit of a sum of 1,00,000/- (Rupees one lakh only)₹ before the said court within a period of one week and subject to the conditions as follows: 1. The petitioner shall appear before the Investigating Officer on all Tuesdays between 9 a.m and 11 a.m, commencing from 26.2.2019 for a period of three months or till final report is filed, whichever is earlier. 2. The petitioner shall neither intimidate or attempt to influence witnesses, nor tamper with evidence. 3.The petitioner shall not commit any offence while on bail. 4. The petitioner shall not leave the jurisdiction of the police station concerned, without obtaining permission from the court having jurisdiction. 5. The petitioner shall not leave India Crl.M.C.1016/2019 13 without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; if release of the passport is required at a later period, he shall be at liberty to move appropriate application before the Court having jurisdiction. In case of violation of any of the above conditions, the jurisdictional Court is empowered to consider the application for cancellation of bail, if any, filed by the authority concerned and pass appropriate orders in accordance with law. ## **Sd/-** ## **MARY JOSEPH** DG **JUDGE** Crl.M.C.1016/2019 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PETITION FILED BY THE INVESTIGATING OFFICER BEFORE THE COURT OF THE ADDITIONAL SESSIONS JUDGE-1, THIRUVANANTHAPURAM.** **ANNEXURE B TRUE COPY OF THE ORDER DATED 17-11-2018 IN CRL. M.P 2263/2018 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-1, THIRUVANANTHAPURAM.** **ANNEXURE C TRUE COPY OF THE PETITION FILED BY THE ADDITIONAL PUBLIC PROSECUTOR BEFORE THE COURT OF THE ADDITIONAL SESSIONS JUDGE-1, THIRUVANANTHAPURAM. ANNEXURE D TRUE COPY OF THE ORDER DATED 21-11-2018 IN CRL.M.P NO. 2347/2018 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-1, THIRUVANANTHAPURAM. ANNEXURE E TRUE COPY OF THE ORDER IN B.A NO. 337/2013 OF THIS HON'BLE COURT, DATED 05-02-2013.**