Vikas @ Vyas v. State of Kerala

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE12[TH]DAYOFJULY2023/21STASHADHA,1945 ``` ## **`CRL.MC NO. 4898 OF 2023`** ``` CRMP4055/2022OFADDITIONALDISTRICTCOURT&SESSIONSCOURT - VII,ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` VIKAS@VYAS AGED35YEARS S/OSATHYASEELAN,KAVYASHOUSE, KUYYALIEDATHIAMBALAMROAD,MANNAYADDESOM, NETTURP.O.,THALASSERY,KANNURDISTRICT - PIN670105 BYADVS. P.I.DAVIS RAJANVELLOTH ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT:`** ``` 1STATEOFKERALA REP.BYTHEPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM-682031,PIN682031 2EXCISEINSPECTOR EXCISERANGEOFFICE, ERNAKULAM-682018 ``` ``` SRI.MPPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 12.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C.No. 4898/2023 2 ## **ORDER** This petition is filed seeking to quash the order dated 26.12.2022 in Crl.M.P 4055 of 2022 in Crime No.51 of 2022 of the Excise Range Office, Ernakulam. By the said order, the learned Sessions Judge considered the report filed by the learned Public Prosecutor under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for brevity), and allowed the application for an extension of detention by a further period of two months. 2. Short facts are as under:- A. The petitioner is the accused in a crime registered under Sections 22(c), 21(a), 20(b)(ii)(A) of the NDPS Act, 1985. The prosecution allegation is that on 28.6.2022 at about 3.30 p.m., the Excise Inspector and his party seized 200 LSD stamps weighing 3.952 gms from a parcel that arrived at the Customs House, Ernakulam and meant to be delivered to the petitioner. Pursuant to the seizure, the house of the petitioner was searched, and it is alleged that 105 gms of Ganja, 254.2 mg of heroin, 604.2 mg of MDMA, 18.75 gms of Hashish and some LSD stamps weighing 36 gms were allegedly seized. He was arrested on 29.6.2022 and remanded to judicial Crl.M.C.No. 4898/2023 3 custody. B. The 180th day from the date of remand fell on 26.12.2022. C. Seeking extension of the period of detention, an application under Section 36A (4) of the NDPS Act was filed on 22.12.2022 before the learned Sessions Judge. D. By the impugned order, the learned Sessions Judge has allowed the application filed by the Public Prosecutor and extended the detention by a further period of two months by order dated 26.12.2022. The said period was due to expire on 24.2.2023. On 24.2.2023 itself, the final report was lodged before the jurisdictional court. On the same day itself, an application for bail was preferred by the petitioner seeking statutory bail. The said application was dismissed on the ground that the final report was laid within the statutory period. The Court also held that based on the materials collected by the prosecution, it cannot be said that the twin conditions under Section 37(1)(b)(ii) of the NDPS Act have not been satisfied. The aforesaid orders are under challenge. 3. Sri Davis, the learned counsel appearing for the petitioner, submitted that the reason stated in the application for extension of detention is only that the Chemical Examination Report, as well as the Crl.M.C.No. 4898/2023 4 Forensic Analysis Report, has not been received. According to the learned counsel, non-receipt of the report cannot be a reason for further detention of the accused. It is further submitted that the application for an extension of detention was not served on the petitioner or his counsel. Relying on the law laid down by the Apex Court in **Sanjay Dutt v State through the C.B.I. Bombay[1]** and **Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat[2]** , it was submitted by the learned counsel that it is mandatory for the Court of Sessions to inform the accused with regards to the filing of an application under Section 36A(4) of the NDPS Act, for extension of period and also to insist for the presence of the accused at the time when the Court considers the application for extension as submitted by the learned Public Prosecutor. Failure to follow the above mandate, according to the learned counsel, is sufficient to invalidate the order of extension. It is further submitted that on 24.2.2023, i.e., the date of expiry of the period of detention, an application for statutory bail was filed by the accused. On the same day, the final report was submitted by the prosecuting agency. However, the report was submitted without obtaining the lab reports. This very fact would show that the application for extension was filed solely with a view to deny the petitioner his indefeasible right to > 2 2022 SCC Online SC 1290. > 1 (1994) 5 SCC 410. Crl.M.C.No. 4898/2023 5 bail. It is further pointed out that after filing the application for default bail, a request was made by the learned counsel for the petitioner to furnish him with a copy of the application for an extension to highlight the defects in the application, which he could not do earlier as no copy was supplied. However, no copy was supplied. The learned Sessions Judge, without appreciating the facts and circumstances, rejected the request for statutory bail by Annexure-A3 order dated 3.3.2023. 4. The learned Public Prosecutor submitted that the application filed by the Public Prosecutor satisfied the twin conditions in Section 36A(4) of the Act. The progress of the investigation as well as the reason for the extension, were clearly stated therein. The application was allowed, and the period of detention was extended till 24.2.2023. Therefore, the investigating officer had time till 24.2.2023 to conclude the investigation. The prosecuting agency submitted the final report on 24.2.2023 itself, well within time. The petitioner did not challenge the extension order till 24.2.2023, and therefore there is no point in challenging the order of extension as the said period has worked itself out. Even if this Court were to hold that the extension order was bad in law, since no application for statutory bail was pending on the 180th day of remand, no relief could be granted to the petitioner. The application for statutory bail filed after the extended period was taken up by Crl.M.C.No. 4898/2023 6 the learned Sessions Judge, and in view of the filing of the final report, the same was dismissed, taking note of the gravity of the offense and the mandate of Section 37 of the NDPS Act. 5. I have considered the submissions advanced and have gone through the records. 6. The first contention of the learned counsel appearing for the petitioner is that he was not served with a copy of the application for extension, and he was not communicated about the application. It is also alleged that a lawyer was not representing the petitioner. I find from the order passed by the learned Sessions Judge that the accused was produced before the learned Sessions Judge, and he had recorded his objection. In the order, it is stated that the Deputy Chief Legal Aid Defense Counsel was representing the accused. It is also mentioned that the accused was produced in person, and he had objected to the request made by the learned public prosecutor for an extension of detention. This Court had also called for a report from the learned Sessions Judge, and it is stated therein that the Deputy Chief Legal Aid Defense Counsel was representing the accused. In that view of the matter, the contention of the learned counsel that the accused was kept in the dark with regard to the filing of the application and that his objection was not sought cannot be accepted. As Crl.M.C.No. 4898/2023 7 held by the Apex Court in **Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat[3]** , it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. Therefore the contention of the learned counsel that non-supply of a copy of the report would invalidate the detention order, cannot be sustained. 7. The second contention concerns the non-application of mind by the learned Sessions Judge while considering the application for extension of detention. In this connection, it would be relevant to note that the 180th day of remand expired on 26.12.2022. An application for an extension of detention was filed well in advance. The said application was allowed by the learned Sessions Judge, and the period was extended till 24.2.2023. The petitioner did not challenge the said order. The petitioner also has no case that on 26.12.2022 or thereafter, the petitioner had filed an application for statutory bail. The records reveal that on the 60th day of the extended period, the final report was submitted by the Investigating Officer. An > 3 2022 SCC Online SC 1290. Crl.M.C.No. 4898/2023 8 application for statutory bail was also filed on 24.2.2023. Once a charge sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. The filing of the charge sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner had the charge sheet not been filed cannot be availed by the petitioner in the instant case. Now that the final report has been filed, the petitioner could have only sought bail under the relevant provisions of the Code and subject to the mandate under Section 37 of the NDPS Act. As to the justification for submitting the final report without the Lab reports is concerned, it is for the petitioner to raise those contentions before the learned Sessions Judge while seeking regular bail. This petition is dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V,** ## **JUDGE** PS/10/7/2023 Crl.M.C.No. 4898/2023 9 ## **`APPENDIX OF CRL.MC 4898/2023`** ``` PETITIONER’SANNEXURES: ``` ``` AnnexureA-1 ``` ``` ATRUECOPYOFTHECRLMPNO.4055/2022 DATED22.12.2022 ``` ``` AnnexureA-2 ``` ``` ATRUECOPYOFTHEORDERDATED 26.12.2022OFTHEHON'BLEVIITH ADDITIONALSESSIONSCOURT,ERNAKULAMIN CRLMPNO.4055/2022 ``` ``` AnnexureA-3TRUECOPYOFTHEORDERINCRLMCNO. 578/2023OFTHEHON'BLE1STADDITIONAL SESSIONSCOURT,ERNAKULAMDATED 3.03.2023 ``` ``` AnnexureA-4ATRUECOPYOFTHEFINALREPORT SUBMITTEDINNDPSCRIMENO.51/2022 BEFORETHEHON'BLE1STADDITIONAL SESSIONSCOURT,ERNAKULAMDATED 23.02.2023 ```