Sudheesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 CRL.MC NO. 109 OF 2023 AGAINST THE ORDER IN CRMP 3053/2022 OF SESSIONS COURT, THRISSUR** ## **PETITIONER/S:** SUDHEESH AGED 21 YEARS KARIMUTTIL HOUSE, KARIKKAD P O, THRISSUR-, PIN - 680519 BY ADVS. C.RAJENDRAN R.S.SREEVIDYA B.K.GOPALAKRISHNAN ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR **OTHER PRESENT:** PP M.C.ASHI **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.109 of 2023 -2- ## **ORDER** Dated this the 3[rd] day of February, 2023 The petitioner is the second accused in Crime No.470 of 2022 of Kunnamkulam Police Station, registered for offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution allegation is that, at about 10.35 p.m on 03.04.2022, the police party stopped the motor bike in which the accused were traveling and on search, detected and recovered 10.80 grams of MDMA at a place called Parembadam. Consequently, the petitioner was arrested on 04.04.2022 and is continuing in judicial custody. As the maximum period of detention is 180 days, the investigating officer filed Crl.M.P.No.3053 of 2022, under Section 36A(4) of the NDPS Act, seeking extension of the detention period by another 180 days, so as to complete the ## Crl.M.C.No.109 of 2023 -3- investigation. In the meanwhile, the petitioner had filed a petition seeking statutory bail, as the final report was not filed within 180 days. The learned Sessions Judge considered the petition and as per Annexure A5 order, allowed the petition filed by the investigating officer and granted a further period of one month for completing the investigation. This Crl.M.C is filed challenging Annexure A5 order. 2. Learned Counsel for the petitioner contended that the impugned order is liable to be set aside on three grounds; (i) The petition under Section 36A (4) was filed by the investigating officer and not the Public Prosecutor. **==> picture [381 x 12] intentionally omitted <==** investigation and specific reason for extension, as mandated under Section 36A(4) was not stated. (iii) The order was passed without the petitioner being produced before the court. ## Crl.M.C.No.109 of 2023 -4- It is pointed out that, the third accused had filed Crl.M.C No.8404 of 2022 challenging an identical order. The challenge is upheld by Annexure A6 order, after detailed consideration of all relevant facts and legal aspects. 3. Learned Public Prosecutor submitted that the quantity of MDMA being 10.80 grams, that itself is sufficient reason to refrain from interfering with the impugned order. It is also pointed out that the investigation has since been completed and final report filed. 4. No doubt, the quantity of contraband seized is large. At the same time, this Court cannot be oblivious to the fact that the petition under Section 36A(4) was filed by the investigating officer and not the Public Prosecutor. I need not delve into the above aspect in detail, as the issue was elaborately considered in Annexure A6 order. 5. There is also substantial merit in the Crl.M.C.No.109 of 2023 -5- contention that the order was passed without producing the accused before the court. The said contention also is liable to be upheld in view of the well considered judgment of the Apex Court in _**Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat [2022 SCC OnLine SC 1290**_ **]** . Therein, the order passed by the Special Court, extending the period of investigation was held illegal on account of failure to produce the accused before the court, either physically or virtually. 6. The order is liable to be set aside based on the third ground of challenge also since, a reading of Annexure A3 petition shows that, other than seeking time for completing the investigation, neither the progress of investigation or specific reason for seeking extension of the detention period was stated. For the aforementioned reasons, I am constrained to quash the impugned order. ## Crl.M.C.No.109 of 2023 -6- In the result, the Crl.M.C is allowed and Annexure A5 order is set aside. Consequently, the Special Court is directed to release the petitioner on bail subject to the petitioner satisfying the following conditions; (i) The petitioner shall execute a bond for Rs.1,00,000/- with two solvent sureties for the like amount to the satisfaction of the Special Judge. (ii) The petitioner shall surrender his passport, if any, before the Sessions Court on the date of execution of bond, or within a period of three days thereafter, after getting exemption in this regard from the Sessions Court. If he has no passport, he shall file an affidavit stating so, on the date of execution of bond or within three days' thereafter. (iii) The petitioner shall co-operate with the investigation and shall make himself available for interrogation by the investigating Crl.M.C.No.109 of 2023 **==> picture [16 x 8] intentionally omitted <==** officer as and when required. (iv) The petitioner shall not commit any offence during the currency of this bail. Sd/- **V.G.ARUN JUDGE** Scl/ Crl.M.C.No.109 of 2023 -8- ## **APPENDIX OF CRL.MC 109/2023** PETITIONER ANNEXURES |Annexure A1|A TRUE PHOTOCOPY OF THE REMAND| |---|---| ||APPLICATION BY THE SUB INSPECTOR OF| ||POLICE DATED 04/04/2022 BEFORE THE| ||PRINCIPAL DISTRICT & SESSIONS COURT,| ||THRISSUR IN CRIME NO 470/2022 OF THE| ||KUNNAMKULAM POLICE STATION| |Annexure A2|THE TRUE PHOTOCOPY OF THE ORDER IN| ||CRL. MP NO. 3181/2022 OF THE SESSIONS| ||JUDGE, THRISSUR DATED 18/10/2022| |Annexure A3|A TRUE PHOTOCOPY OF THE PETITION FILED| ||BY THE PUBLIC PROSECUTOR UNDER SECTION| ||36A(4) OF THE NDPS ACT DATED| ||27/09/2022 BEFORE THE FIRST ADDITIONAL| ||SESSIONS JUDGE THRISSUR| |Annexure A4|A TRUE PHOTOCOPY OF THE OBJECTION| ||FILED BY THE PETITIONER TO THE| ||PETITION FILED BY THE PUBLIC| ||PROSECUTOR DATED 13/10/2022| |Annexure A5|A CERTIFIED COPY OF THE ORDER DATED| ||18/10/2022 IN CRL MP NO. 3053/2022 OF| ||THE SESSIONS JUDGE, THRISSUR| |Annexure A6|A TRUE PHOTOCOPY OF THE ORDER IN CRL| ||MC 8404/2022 BEFORE THIS HON'BLE COURT| ||DATED 08/12/2022|