Non-compliance with Article 22(1) vitiates arrest, but acknowledgment of grounds by the accused undermines this claim; prolonged custody does not negate statutory bail restrictions under NDPS Act.

ORDER :

(K. MURALI SHANKAR, J.) 

The Court made the following order :-

The petitioner/accused, who was arrested and remanded to judicial custody on 16.07.2021 for the offences punishable under Sections 8(c), 21, 23, 25, 28 and 29 of NDPS Act, in F.No.DRI/CZU/ TTIN/VIII/48/10/INT-1/2021, seeks bail.

2. The case of the prosecution is that on 15.07.2021 at about 17.20 hours, based on some information that the accused would be carrying hashish oil in two wheeler bearing Registration No.TN-69-E8879, the respondent agency had intercepted the said vehicle and found that the rider was in possession of 5 pockets of 4.705 kgs of Ganja oil and that the said rider/petitioner herein was arrested and the contraband was seized.

3.The case of the petitioner is that the respondent police has arbitrarily fabricated the above case against the petitioner, that they have not followed all the procedures laid down in the NDPS Act, that the respondent police has not disclosed, in the arrest memo, any material with regard to the ownership of the vehicle, that there is every possibility that the seized substance was implanted in the vehicle in order to implicate the petitioner in the present case, that the independent witnesses have not been examined by the Investigation Officer during search and that they have not followed the mandatory provisions of Sections 42, 50 and 51 of NDPS Act.

4.The learned counsel for the petitioner would submit that the petitioner is innocent person and he is a poor coolie, that he is in judicial custody from 16.07.2021 and that there is no previous case pending against him.

5.The learned Senior Counsel appearing for the respondent agency would submit that 4705 grams of hashish oil, a narcotic drug covered under the NDPS Act, was recovered from the petitioner, that the petitioner has also given a statement under Section 67 of NDPS Act, that the petitioner was involved in smuggling of 4 kgs of Heroin in the year 2001 and he was convicted and that the respondent, after completing the investigation, has laid the complaint before the Special Court and the same was taken on file in C.C.No.80 of 2022 and is pending.

6.The learned Senior Counsel would further submit that since the petitioner has not satisfied with the twin conditions contemplated under Section 37 of NDPS Act, he is not entitled to be enlarged on bail.

7. It is not in dispute that the petitioner's earlier application in Crl.O.P(MD)No.2909 of 2022 for bail, came to be dismissed on 03.03.2022, mainly on the ground that the twin conditions contemplated under Section 37 of NDPS Act were not satisfied. It is also not in dispute that the petitioner's second application for bail in Crl.O.P(MD)No.7250 of 2022, which was also dismissed vide order, dated 24.06.2022. However, while dismissing the second petition, considering the fact that Non- bailable warrant was pending against the first accused, this Court directed the learned trial Judge to take necessary steps through the respondent police for execution of warrant against the first accused and if the first accused is not secured within a reasonable time, the trial Judge was directed to take necessary steps for splitting up the case so far as the present petitioner/accused is concerned and proceed with the trial and dispose of the case as expeditiously as possible.

8.The petitioner/accused, complaining that the directions of this Court were not complied by both the Court and the Police and also raising some grounds on merits, has filed the present third application.

9.Considering the submissions made by the learned counsel for the petitioner that the directions of this Court, dated 24.06.2022 have not complied with, this Court directed the Registry to call for a report from the learned trial Judge and also an affidavit from the Investigating Officer, who is in charge of the case. In pursuance of the same, the learned Additional District Judge, Principal Special Court for EC and NDPS Act Cases, Madurai, has submitted a report, dated