Sixson v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **BAIL APPL. NO. 5032 OF 2021** **(CRIME NO.69/2020 OF EXCISE ENFORCEMENT AND ANTI-NARCOTIC SPECIAL** **SQUAD, PALAKKAD)** ## **PETITIONER/S:** SIXSON AGED 32 YEARS S/O. SABU, PARAPPALLI HOUSE, T.D. SANNIDHI ROAD, THAMMANAM P.O. ERNAKULAM DISTRICT - 682 032. BY ADV LATHEESH SEBASTIAN ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031. 2 ASSISTANT COMMISSIONER, EXCISE ENFORCEMENT ND ANTI NARCOTIC SPECIAL SQUAD, PALAKKAD 678 001. ## **OTHER PRESENT:** SRI.M.R.DHANIL-PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON 26.07.2021 DELIVERED THE FOLLOWING: _**B.A.No.5032 of 2021**_ 2 ## **O R D E R** ## **Dated this the 26[th] day of July, 2021** The application for statutory bail under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) read with Section 167(2) of the Cr.P.C. filed before the jurisdictional court was dismissed and hence this bail application seeking indulgence. The petitioner had earlier approached this Court for bail under Section 439 of the Cr.P.C. by filing B.A.No.3714/2021, which was withdrawn with liberty. 2. The facts in brief can be encapsulated as thus: On 10.12.2020 the accused 1 and 2 were travelling in a pickup van bearing Reg.No.KL-52-Q-7768 piloted by a car bearing Reg.No.KL-58-AB-9623, in which the applicant and the 3[rd] accused were travelling. They were intercepted near the Walayalar Weigh Bridge by the Excise Enforcement and Anti-Narcotic Special Squad, Palakkad at about 9.30 AM and 3 ## _**B.A.No.5032 of 2021**_ the pickup van was allegedly transporting 122 kgs. of Ganja and Crime No.69/2020 was registered against all the four accused for offences punishable under Section 20(b)(ii)C read with Sections 29 and 63 of the NDPS Act. They are in judicial remand. 3. Statutory period of 180 days expired on 08.06.2021. Prior to the expiry of that period, on 04.06.2021, the Public Prosecutor filed a petition at Annexure A1 seeking extension of time to complete the investigation. While that was pending consideration on 09.06.2021, ie., on the 181[st] day, the petitioner filed an application for statutory bail before the jurisdictional court. Vide the impugned order at Annexure A3 dated 15.06.2021 the learned Sessions Judge, Palakkad dismissed the prayer for bail and granted extension of time for investigation by 30 days from 08.06.2021. 4. The petitioner states that there is absolutely no material to connect the petitioner with the crime, nothing was recovered from him and that Annexure A1 petition 4 ## _**B.A.No.5032 of 2021**_ seeking extension is not in compliance with the requirements under Section 36A(4) of the NDPS Act. The learned Counsel for the petitioner submits that the extension was granted by the jurisdictional court only on 15.06.2021, after the expiry of the period and the order specifically states that the extension is granted with effect from 08.06.2021, which means a retrospective extension has been granted, which, according to the petitioner is not sustainable. 5. Heard the learned Counsel for the petitioner and the learned Public Prosecutor. 6. The learned Public Prosecutor submits that there is absolutely nothing wrong with Annexure A1 submitted by the Public Prosecutor for extension of time. It is stated that he has perused the case diary in the crime and found that the investigating officer in pursuit of the source of the contraband seized has obtained several leads on that behalf. It is further submitted that for an effective and successful prosecution of the above crime, it is highly _**B.A.No.5032 of 2021**_ 5 necessary that the ownership details of the vehicles in the crime and the place from where the contraband originated and the complicity of the other people involved and also the conspiracy aspect need to be proved, and on examination of the case diary, the learned Public Prosecutor feels that the above crime is having interstate ramifications and as such requires extensive investigation for a longer period and the contraband, which originates from Vishakapattanam in Andhra Pradesh needs to be visited by the investigating officer and because of the COVID-19 pandemic, it has not been possible to facilitate the smooth travelling and therefore, an extension is sought. 7. The learned Counsel for the petitioner relies on the decision in _**Rajnikant Nivanlal & others v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71**_ to submit that the court has no power to remand an accused after the expiry of the statutory period. He also relies on _**Syed Mohammed Ahamed Kazmi v. State, 2012 (12) SCC 1**_ to argue that retrospective extension of time is not possible. 6 ## _**B.A.No.5032 of 2021**_ Moreover, the learned Counsel also relies on the decision of the Apex Court in _**Hitendra Vishnu Thakur & others v. State of Maharashtra, 1994 (4) SCC 602**_ to submit that a mechanical approach cannot be adopted by the Prosecutor while seeking an extension of time required for investigation. The learned Counsel also relies on _**Sanjay**_ _**Kumar Kedia @ Sanjay Kedia v. Intelligence Officer Narcotic Control Bureau & another, 2010 KHC 312 : 2009 (17) SCC 631**_ to argue that the application for extension has to reflect the compelling reasons and cogent reasons for extension of time. 8. After having heard the arguments on both sides and on perusal of the records, I find that the decision in _**Hitendra Vishnu Thakur**_ ( _supra_ ) is not applicable to the case in hand; because in that case it was the report of the investigating officer, which was submitted by the Public Prosecutor to seek an extension, which according to the Apex Court was not sufficient, because there must be specific report submitted by the Public Prosecutor to the 7 ## _**B.A.No.5032 of 2021**_ effect that he has applied his mind to the reasons stated for extension and was convinced that an extension of the period fixed for investigation is genuinely required. Same is the finding in _**Sanjay Kumar Kedia's**_ case ( _supra_ ). 9. In the instant case, the Prosecutor has stated that he has gone through the case diary and is convinced that for tracing out the source of the Ganja, which was from Vishakapattanam, the investigating officer needs further time and because of the pandemic restrictions it was not possible, and therefore, the investigating officer has sought for time for completing the investigation and the learned Sessions Judge after convincing himself granted that extension of time. The application for extension was filed prior to the expiry of the time, but soon after the expiry of the statutory period, the petitioner applied for bail, and hence, both these applications were heard together by the jurisdictional court and disposed of by a common order. I find no infirmity in the proceedings or the Order of the learned Sessions Judge. There is no 8 ## _**B.A.No.5032 of 2021**_ reason for interference and hence the Bail Application for statutory bail is only to be dismissed and hence I do so. **Sd/-** **ASHOK MENON JUDGE** _dkr_ 9 ## _**B.A.No.5032 of 2021**_ ## **APPENDIX OF B.A.No. 5032 of 2021** PETITIONER ANNEXURE |ANNEXURE A1|COPY OF PETITION IN CRL.MP (T) NO.97/2021| |---|---| ||FILED BEFORE SESSIONS COURT, PALAKKAD.| |ANNEXURE A2|COPY OF THE OBJECTION OF THE PETITIONER TO| ||ANNEXURE A1 PETITION.| |ANNEXURE A3|COPY OF THE COMMON ORDER DATED 15.06.2021 IN| ||CRL.MC(T) NO.120/2021, CRL.MC(T) NO.121/2021| ||AND CRL.MC(T) NO.122/2021 OF SESSIONS COURT,| ||PALAKKAD.| |ANNEXURE A4|COPY OF THE ORDER OF THE HIGH COURT IN B.A.| ||NO.3714/2021 DATED 16.06.2021.|