Shino John v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE 28TH DAY OF MAY 2018 / 7TH JYAISHTA, 1940 Crl.Rev.Pet.No. 618 of 2018 …...... AGAINST THE JUDGMENT IN CRMP 66A/2018 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CRIME NO. 1103/2017 OF KATTAPPANA POLICE STATION , IDUKKI ## REVISION PETITIONER(S)/ACCUSED NO.3 SHINO JOHN, S/O. JOHN,AGED 39 YEARS, OCC-AGRICULTURIST R/AT PANTHANAL HOUSE, VAKKODAN CITY, SHANTHANPARA, IDUKKI DISTRICT. BY ADVS.SRIBIJU ANTONY ALOOR SRI.JOHNY ANDREWS SRI.K.P.PRASANTH SRI.RAJESH R. NAIR ## RESPONDENT(S)/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THROUGH KATTAPANA POLICE STATION, IDUKKI. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 2805-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 618 of 2018 ## APPENDIX ## PETITIONER'S EXHIBITS: ANNEXURE A: TRUE COPY OF THE FIR FILED BY KATTAPANA POLICE STATION ANNEXURE B: TRUE COPY OF THE REMAND REPORT ANNEXURE C: TRUE COPY OF THE CRL.M.P NO.66A/2018 ANNEXURE D: TRUE COPY OF THE CRL.M.C. NO.23/2018 /TRUE COPY/ P.S TO JUDGE ## **P.UBAID, J.** ## **~~~~~~~~~~ Crl. R.P No.618 of 2018 ~~~~~~~~~~~ Dated this the 28[th] May, 2018** ## **O R D E R** The revision petitioner herein is the 3[rd] accused in Crime No.1103/2017 of the Kattappana Police Station registered under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). This is a case involving commercial quantity of hashish oil. Though the quantity seized from the joint possession of the accused is 25kgs, the prosecution would contend that the total quantity involved in the case is 116kgs, and 91 kgs remains to be seized. The petitioner has been in judicial custody since 20.8.2017. This is a case involving a lawyer as 2[nd] accused. The prosecution would allege that the other accused including this petitioner committed the grave offence involving commercial quantity of hashish oil with the support, advise and assistance of a lawyer. This adds to the gravity of the offence. In this case, the statutory period during which the accused can be detained in custody is 180 days as authorised by sub-section (4) of Section 36A of the NDPS Act. The proviso to sub-section 4 of Section 36A of the NDPS Act provides that in appropriate **Crl. R.P No.618 of 2018** **2** cases where the investigation could not be completed within a period of 180 days, the Special Court may extend this period up to one year on the report of the Public Prosecutor indicating the progress of investigation and also the specific reasons for the detention of the accused beyond the period of 180 days. The petitioner was arrested by the Police on 20.8.2017. On 14.2.2018, the learned Public Prosecutor in-charge of the case submitted a report to court containing the essential requirements of the proviso to sub-section (4) of Section 36A of the NDPS Act and requesting extension of the period of remand. Pending the said request, an application for statutory bail was filed by the accused on the expiry of the period of 180 days. The said application filed as Crl.M.C 23/2018 was dismissed by the learned Special Judge (NDPS cases), Thodupuzha on 27.2.2018 on the ground that the request for extension was at that time pending. Subsequently, the request for extension filed as Crl.M.P.No.66A/2018 was allowed by the learned trial Judge, and by order dated 6.3.2018, the period was extended up to one year as authorised under the **3** ## **Crl. R.P No.618 of 2018** proviso. The 3[rd] accused is now before this court in revision challenging the order dated 27.2.2018 in Crl.M.C 23/2018 disallowing statutory bail. 2. The case advanced by the learned counsel for the revision petitioner is that once the right for statutory bail accrued to the petitioner on the expiry of 180 days, the court below should not have extended the remand period beyond 180 days. It is not known whether the petitioner has challenged the order dated 6.3.2018 in Crl.M.P. No.66A/2018. That is the order by which the period of detention was extended by the trial court. The right and the regular remedy actually must be to challenge the said order by which the court has extended the period of detention. 3. The learned counsel cited some decisions to substantiate his contention that the application for extension should not have been allowed by the court after the statutory period of 180 days. One is the common judgment of the Punjab and Haryana High Court in Cr.l.Revision Nos.764/2015 and 853 of 2015 between **Crl. R.P No.618 of 2018** **4** Surinder Kumar and State of Punjab and Kuldip Singh @ Benja v. State of Punjab respectively. Another decision is also that of the Punjab & Haryana High Court in CRR No.2087/2014 between Ranjit Singh @ Rana an3 State of Haryana. In these cases (not seen reported), the report for extension of time under the proviso to sub-section 2 of Section 36A of the NDPS Act was filed by the prosecution after the expiry of 180 days. In this case, the right for statutory bail accrued to the petitioner on the expiry of 180 days on 24.2.2018 as he would say, but the report or request for extension of period was filed by the prosecution on 14.2.2018. Another judgment of the Hon'ble Supreme Court cited by the learned counsel is in Crl.A 786/2010 in the case between Union of India through C.B.I and Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav (not seen reported). That is a case dealing with statutory bail under Section 167 Cr.P.C in relation to the provisions of the TADA. This is a case involving the special authorisation granted by the law under the proviso to Section 36A (2)of the NDPS Act, authorising the court to extend the period of remand up to **Crl. R.P No.618 of 2018** **5** one year. 4. This is a case where the report or request for extension was filed by the prosecution before the expiry of the period of 180 days. Whether the said report or request contains the necessary requirements as stated in the proviso is a matter for consideration. But I am not inclined to go to those aspects because this is not a revision or proceeding challenging the said order. The petitioner has produced the copy of the said order as Annexure-C, wherein, the court below has discussed the contents of the report submitted by the learned Public Prosecutor regarding the stage of investigation, the progress of investigation and also the reason for seeking extension of the remand period. On a consideration of the facts reported by the prosecution and the necessity of extension in the particular facts and circumstances of the case where huge quantity of hashish oil is involved, and a lawyer is also involved as accused, the court below found the absolute necessity of extension for effective investigation including the recovery of the remaining quantity of hashish oil. In this proceeding, **6** ## **Crl. R.P No.618 of 2018** where the said order is not under challenge, I am not inclined to go to the legality of the said order of the trial court. I find that without prejudice to the right of the petitioner to challenge the specific order by which the period of remand was extended, this revision challenging the order disallowing statutory bail can be disposed of. When the period of remand stands extended as authorised under the law, on request or report filed before the expiry of the statutory period, the accused cannot claim statutory bail as of right without challenging the other order. In the result, this revision petition is dismissed, however, without prejudice to the right of the petitioner to challenge the order of the court below granting extension of the period of remand as authorised under the proviso to sub-section (4) of Section 36A of the N.D.P.S. Act. ## **Sd/-** **P.UBAID JUDGE** /True copy/ P.S to Judge ma