Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Ker) 815

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Ubaid.A.M, S/o.Abdul Khader - Appellant
Versus
State Of Kerala - Respondent
Crl.MC No.6559 of 2022
Decided on : 10-11-2022

Advocates:
Advocate Appeared:
For the Appellant : P.Rakesh Thamban
For the Respondent: Sri.T.R.Renjith

Point of Law: Statutory bail, an indefeasible right of petitioner, is liable to be granted since petition for extension is not in accordance with statutory mandate.

Headnote:
Code of Criminal Procedure, 1973 - Section 482, 167(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(b) read with Section 29, 36-A, 36-A(4) - Seeking statutory bail – Savings of inherent powers of High court - Offences triable by Special Courts - Whether any other persons were also involved in crime - It has to be held that a mere re-production of application or request of Investigating Officer by Public Prosecutor in his report, without demonstration of application of his mind and record of his own satisfaction would not render his report as one envisaged under Section 36-A(4) of the Act (Para 19).
Findings of the Court: Even on meticulous reading of AnnexureA2 petition, compliance of the first condition, i.e., indication of progress of the investigation could not be gathered, though it has been stated therein that the accused had been furnishing incorrect details of the contraband, so as to divert the investigation and therefore, further investigation had to be done to find out, whether any other persons were also involved in the above crime - It has to be held that the application as Annexure-A2 put by the prosecutor is not in terms of the mandate of proviso to Section 36-A(4) of the NDPS Act and therefore, the same cannot be allowed. Thus, it is held that the learned Special Judge went wrong in allowing Annexure-A2 application and denying the statutory bail plea of the petitioner herein/the accused - It is held that the statutory bail, an indefeasible right of the petitioner, is liable to be granted since the petition for extension is not in accordance with the statutory mandate.
Result: Ordered accordingly

ORDER :

This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’ for convenience) to quash Annexure-A4 common order in Crl.M.P.Nos.3101/2022 and 3126/2022, in crime No.128/2022 of Melparamba police station.

2. The petitioner herein is the sole accused in the above crime, where he alleged to have committed offences punishable under Section 22(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘the NDPS Act’ for convenience). The respondent herein is the State of Kerala.

3. Heard the learned counsel for the petitioner/accused as well as the learned Public Prosecutor.

4. In this matter, when the police party intercepted the petitioner/accused at 22.30 hours on 29.01.2022, it was found that the petitioner/accused was possessing and transporting 241.38 gm of MDMA, for the purpose of sale, in a scooter bearing registration No.KL 14P 4348 at Chandragiri bridge in Chemmanur village. He was nabbed and the contraband was taken into custody. Thereafter, crime was registered, alleging commission of the above offences.

5. The petitioner/accused filed petition, vide Crl.M.P.No.3126/2022, before the Special court, seeking statutory bail on 29.07.2022, contending that, since he had been in custody from 29.01.2022, and the final report/charge sheet was not filed within 180 days of his custody, he was entitled to get statutory bail, on completion of 180 days, as stipulated under Section 167(2) of Cr.P.C.

6. Before filing the statutory bail plea at the instance of the accused, the learned Public Prosecutor filed Crl.M.P.No.3101/2022 (Annexure-A2), under Section 36-A(4) of the NDPS Act, along with report filed by the Inspector of Police, Melparamba, seeking extension of period of investigation, beyond the period of 180 days, upto a period of one year.

7. The learned Special Judge heard both petitions together and finally allowed Crl.M.P. No.3101/2022, ordering further detention of the petitioner/accused for a period of 180 days beyond the statutory period to complete the investigation. Crl.M.P.No.3126/2022, the application for default bail was dismissed.

8. The above common order is under challenge in this petition.

9. While assailing the common order, the learned counsel for the petitioner argued that in order to get extension of the period of investigation beyond 180 days, by resorting to Section 36-A(4), it is necessary, for the learned Public Prosecutor, to indicate the progress of investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. According to the learned counsel for the petitioner, the petition filed by the learned Public Prosecutor, copy of which produced as Annexure-A2 herein, does not contain the progress of investigation, though there are reasons for the detention of the accused beyond the said period of 180 days. Accordingly, it is argued that the Special court went wrong in allowing Annexure-A2 and dismissing the statutory bail plea of the petitioner, which is an indefeasible right of the petitioner, guaranteed by the Constitution. He has given emphasis to the decisions reported in Hitendra Vishnu Thakur and others v. State of Maharashtra [1994 SCC (4) 602], Sanjay Kumar Kedia @ Sanjay Kedia Vs.Intelligence Officer, Narcotic Control Bureau & Another [(2009) 17 SCC 631], Unreported Crl.M.C.No. 5412/2022, Appukuttan vs. State of Kerala (2013 KHC 3669), Unreported B.A.No.3850/2021 and Nayantara Gupta V. State of Maharashtra [2020 SCC Online Bom 873] in support of his contention.

10. Whereas, the learned Public Prosecutor, who supported the common order impugned, submitted that, going by the recitals in Annexure-A2 petition dated 26.07.2022 filed by the learned Public Prosecutor, compliance of the mandate of Section 36-A(4) could be gathered and therefore, the order impugned does not require any interference.

11. Having heard as argued, it is necessary to refer the statutory w