Shameem Shah v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 CRL.MC NO. 7470 OF 2023 ``` ``` AGAINST THE ORDER IN CRIME NO. 382/2023 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## **`PETITIONER/ACCUSED NO.2 (IN CUSTODY FROM 01.03.2023):`** ``` SHAMEEM SHAH, AGED 24 YEARS S/O. ABDUL SALIM, THAMARACHALIL HOUSE, KANGARAPPADI, THRIKKAKKARA NORTH VILLAGE, ERNAKULAM DISTRICT, PIN - 682021 BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2STATION HOUSE OFFICER, THRIKKAKARA POLICE STATION, ERNAKULAM DISTRICT, PIN - 682030 ``` ## **`OTHER PRESENT:`** ``` RENJITH TR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 Crl.M.C.7470/2023 **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.No.7470 of 2023 ------------------------------------------Dated this the 10[th] day of October, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed with the following prayers: a) Set aside Annexure-6 order granting extension of time to the respondent no.2 for filing the final report in Crime No.382/2023 of Thrikkakara Police Station, Ernakulam and release the petitioner on statutory bail on imposing whatever conditions this Hon’ble Court deems fit. b) Such other order or decision which this Hon’ble Court may deem fit in the interest of justice and circumstances of the case. 2. Annexure-6 is an order granting extension of time to the 2[nd] respondent for filing final report in Crime No.382/2023 of Thrikkakara Police Station. This was a petition under section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for an order of extension of additional 180 days for filing the final report in Crime No.382/2023. The petitioner herein is the 1[st] accused in the 3 Crl.M.C.7470/2023 above case. As per Annexure-6 order, one month time is granted to the police for completing the investigation. Aggrieved by the same, this Crl.M.C is filed. 3. Heard learned counsel for the petitioner and the learned Public Prosecutor. 4. This Court perused Annexure-6 order. Annexure-5 is the petition filed by the learned Public Prosecutor for extension of time to submit a final report. After narrating the facts, the learned Sessions Judge allowed the petition with following observations. 7. From the report filed by the Prosecutor it is pellucid that the investigation is almost completed. The report states that the digital evidence have been collected against the accused persons. There is digital evidence against accused persons and the same is the second foot print of the accused persons. Further time for investigation is not justified. As strong objection has been filed by A3 and A4, I am of the considered view that the time for completing the investigation against A3 and A4 can be extended by 15 days only and for the other accused the period of investigation is extended by 1 month. 5. This Court in **Dayal v. State of Kerala represented by Public Prosecutor and another** [ **2023(2) KHC 564** ] 4 Crl.M.C.7470/2023 considered the points to be decided by the Court while considering an application under section 36A(4) of the NDPS Act. It will be beneficial to extract the relevant portion. ‘11. The said requirement is incorporated to ensure that the accused’s valuable right to statutory bail, is not defeated in a casual manner. Here, the right to liberty of a citizen which is sacrosanct and the well settled principles that bail is a right and jail, an exception comes into play. Unfortunately, in Annexure 2, except for a general statement that, releasing the accused will adversely affect the progress of investigation, no reason, let alone in specific reason, is stated, so as to convince the court about the necessity of continuing the petitioner’s detention beyond 180 days. Surprisingly, this crucial defect was not taken note of by the court below. Hence, I am left with no alternative but to set aside Annexure 3. It is seen that as per Annexure 4 order, the petition for statutory bail filed by the petitioner was dismissed for the reason that the petition for extension of period for completing investigation was allowed as per Annexure-3. As Annexure-3 is quashed, Annexure-4 is also liable to be set aside. I do so.’ 6. Similarly in **Ubaid A.M. v. State of Kerala [2022(7) KHC 197],** this Court again considered the matter in detail. It will 5 Crl.M.C.7470/2023 ## be better to extract the relevant portion. ‘17. 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 Cri.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 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. 18. Thus, the law emerges is that, as per Section 36-A(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 6 Crl.M.C.7470/2023 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 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. 19. Going by the said ratio, it has to be held that a mere re-production 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 record of his own satisfaction would not render his report as the one envisaged under Section 36A(4) of the Act. Similarly, in the report, the Public Prosecutor shall narrate the progress of investigation and the specific reason for the detention of the accused beyond 180 days.’ 7. A perusal of the above dictum combined with the discussion in Annexure-6 order would show that Annexure-6 is not a speaking order considering Annexure-5 in a proper manner. Therefore, without expressing any opinion on merit, Annexure-6 can 7 Crl.M.C.7470/2023 be set aside and there can be a direction to the First Additional Sessions Judge, Ernakulam to reconsider the matter. ## Therefore, this Crl.M.C is allowed with the following directions: a) Annexure-A6 is set aside. b) The First Additional Sessions Judge, Ernakulam is directed to reconsider C.M.P.No.3545/2023, after giving an opportunity of hearing to the petitioner and the prosecutor concerned as expeditiously as possible. c) The petitioner is free to file fresh bail application and if such a bail application is received, the court below will consider it in accordance with law. To facilitate the court to pass fresh order, Annexure-7 is set aside. Sd/- ## **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 8 Crl.M.C.7470/2023 ## **`APPENDIX OF CRL.MC 7470/2023`** - `PETITIONER ANNEXURES Annexure1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.382/2023 OF THRIKKAKKARA POLICE STATION` - `Annexure 2 TRUE COPY OF THE REMAND REPORT OF THE PETITIONER IN CRIME NO.382/2023 OF THRIKKAKKARA POLICE STATION` - `Annexure 3 TRUE COPY OF THE REMAND REPORT OF THE ACCUSED NOS. 2 TO 4 IN CRIME NO.382/2023 OF THRIKKAKKARA POLICE STATION` - `Annexure 4 TRUE COPY OF THE SEARCH LIST CUM SEIZURE MAHAZAR IN CRIME NO.382/2023 OF THRIKKAKKARA POLICE STATION` - `Annexure 5 TRUE COPY OF THE PETITION DATED 19.08.2023, NUMBERED AS CRL.M.P. NO.3545/2023 FILED BY THE PUBLIC PROSECUTOR BEFORE THE HONOURABLE FIRST ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM` - `Annexure 6 CERTIFIED COPY OF THE ORDER DATED 25.08.2023 IN CRL.M.P. NO. 3545/2023 PASSED BY THE HONOURABLE FIRST ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM` - `Annexure 7 TRUE COPY OF THE ORDER DATED 05.09.2023 IN CRL.M.C. NO. 2505/2023 OF THE HONOURABLE FIRST ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM`