Gauhati High Court
Chonghoi Haokip vs Union Of India on 7 November, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/14
GAHC010160792022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./804/2022
CHONGHOI HAOKIP
W/O SHRI LUNGSIBUI THIUMAI
R/O VILL- MAKUILONGDI
P.S. SENAPATI
DIST. SENAPATI, MANIPUR
VERSUS
UNION OF INDIA
REP BY THE STANDING COUNSEL TO THE DIRECTORATE OF REVENUE
INTELLIGENCE.
Advocate for the Petitioner : MR. Y S MANNAN
Advocate for the Respondent : SC, DRI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 07-11-2022 Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel for the Director of Revenue Intelligence.
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2. By filing this criminal petition under section 482 Cr.P.C., the petitioner, namely, Smt. Chonghoi Haokip, has prayed for setting aside and quashing of the order dated 22.07.2022, passed by the learned Special Judge, Kamrup (M), Guwahati in DRI Case No. 18/CL/NDPS/HEROIN & METH/DRI/GZU/2021-2022, thereby exercising power under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short) to extend the period of investigation by 2 (two) months beyond 180 days.
3. It may be mentioned that the matter was moved on 17.08.2022 and subsequently the matter was listed on 16.09.2022, 20.10.2022 and 01.11.2022. Although notice of motion was not issued. However, both sides were extensively heard on merit on 20.10.2022 and 01.11.2022 and the case was reserved for delivery of orders on 07.11.2022.
4. Bereft of unnecessary details, it would suffice to mention that on 03.02.2022, on the basis of a specific information, the DRI personnel had intercepted a Maruti Eco Van Vehicle bearing registration number AS-01-EY- 3766, which was allegedly coming from Dimapur in the State of Nagaland and after following the prescribed procedure, seized the following, viz., 679.60 gram suspected heroin, 10,000 methamphetamine tablets weighing 1000 gram, which the DRI has valued to be worth about 1,47,11,648/- (Rupees One crore forty seven lakh eleven thousand six hundred forty eight only). It may be mentioned that the contraband were kept hidden/ concealed in hollow chamber at the lower end of the door frame of the said vehicle. Several other articles and documents were also seized in course of investigation. The driver of the vehicle disclosed that his wife, i.e. the petitioner and his aunt were the owners of the Page No.# 3/14 contraband. Later on, during search operation, a sum of Rs.4,45,200/- was recovered from the house of the petitioner on 04.02.2022 and the petitioner was arrested along with other co-accused. Later on, the said vehicle was taken to authorised service centre, where upon thorough search, on 12.02.2022, a further quantity of 1,00,000 (One lakh) methamphetamine tablets was recovered from a separate partition made inside the fuel tank, which the DRI personnel had valued at Rs.7,00,00,000/- (Rupees Seven crore only).
5. It may be mentioned that within the period of 180 days, the prosecution could not submit the charge-sheet, as the investigation could not be completed. Therefore, by filing a petition bearing no. 2099/2022 dated 22.07.2022, which was filed by the Junior Standing Counsel for the DRI- cum- Public Prosecutor, the Investigation Officer of DRI had prayed for extension of time for completing the investigation. The learned Special Judge, Kamrup (M), Guwahati, by an order passed on the same day, i.e. on 22.07.2022, allowed the prayer made under Section 36A(4) of the NDPS Act and extended the time to complete the investigation.
6. The learned counsel for the petitioner has submitted that the order dated 22.07.2022 was vitiated by non-compliance of the principles of natural justice and non-adherence to the provisions of Section 36A(4) of the NDPS Act, 1985. Hence, it was submitted that the petitioner had become entitled to default bail after 180 days of her arrest. It has been further submitted that procedural lapses and/or impropriety committed by the prosecution as well as the Court of the learned Special Judge, Kamrup (Metro), Guwahati are, viz., (i) the petitioner was not given any notice of application filed Page No.# 4/14 by the prosecution for extension of time; (ii) on 22.07.2022, when the said petition was moved, the petitioner was not produced before the Court of the learned Special Judge, Kamrup (Metro), Guwahati; and (iii) the Public Prosecutor had merely did a clerical job of merely lending his name for filing the petition, but there is nothing on record that he had applied his mind, which is a mandatory requirement.
7. In support of his submissions, the learned counsel for the petitioner has placed reliance on the following case citations, viz., (i) M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485, (ii) The State of Maharashtra v. Surendra Pundlik Gadling & Ors., (2019) 5 SCC 178; (iii) Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau & Anr., (2009) 17 SCC 631 , (iv) Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 , (v) Pritam Manohar Pardeshi & Ors. v. State of Odisha, decided by High Court of Orissa on 05.10.2021 (print-out from 'Casemine').
8. In the case of Sanjay Kumar Kedia (supra), the Supreme Court of India had held that the condition on which prayer for extension is to be considered are (i) a report of a public prosecutor; (ii) which indicates the progress of the investigation, (iii) specifies compelling reasons for seeking the detention of the accused beyond 180 days; and (iv) after notice to the accused. In the said case, no notice was given to the accused and he was not present in the Court on the said date and accordingly, it was held that the extension granted to the investigating department under the proviso to Section 36A(4) did not satisfy the conditions and accordingly, the order extending time was held to Page No.# 5/14 be contrary to law and was struck down and it was directed that the petitioner therein be released forthwith. In the case of Hitendra Vishnu Thakur (supra), the Supreme Court of India, while considering para materia provisions of Section 20(4)(b) and (bb) of TADA Act, had held that extension of time could be granted when a report is submitted by the Public Prosecutor, notice is issued to the accused before granting extension so that the accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. Similarly, in the case of Surendra Pundlik Gadling (supra), while considering para materia provision of proviso to Section 43D(2)(b) of UA(P) Act, 1967, the Full bench of Supreme Court of India had held that request of an Investigating Officer for extension of time is not a substitute for the report of the Public Prosecutor. In the case of M. Ravindran (supra), the importance of Section 167(2) Cr.P.C. was emphasized and it was held that the said provision cannot be rendered nugatory. In the case of Pritam Manohar Pardeshi (supra), it was held that if on completion of 180 days of detention of the accused, he applies for bail, he becomes entitled to default bail and the Court must release him without unnecessary delay.
9. The learned standing counsel for the respondent, i.e. DRI, has opposed the prayer made in this criminal petition and it was submitted that there are no good grounds to entertain this criminal petition. It was submitted that the proviso of Section 36A(4) of the NDPS Act did not prescribe that an accused i.e. the petitioner was entitled to any notice of the application filed by the prosecution for extension of time. It was submitted that on 22.07.2022, when the said petition was moved, it was not the date fixed for production of the petitioner before the Court of the learned Special Judge, Kamrup (Metro), Page No.# 6/14 Guwahati. It is further submitted that as the Public Prosecutor had filed the petition for extension of time, he was not doing a clerical job and that his signature on the said petition disclosed that the Public Prosecutor had applied his mind before filing the said petition. It is further submitted that the petitioner was an ordinary resident of Imphal in the State of Manipur and was smuggling narcotic drugs and psychotropic substances from porous international border in the State of Manipur and she was bringing huge catchment of banned substances to Guwahati through Dimapur in the State of Nagaland, as such, it was submitted that once the petitioner can cross the border of the State of Assam, she can vanish into thin air and she would abscond to evade her trial, where she is likely to face a severe and stringent sentence.
10. In support of his submissions, the learned standing counsel for the respondent has relied on the case of (i) Surendra Pundlik Gadling (supra),
(ii) Sharjeel Imam v. State of NCT of Delhi, (2020) 0 Supreme(Del) 697 [Crl.M.C. No. 1475/2020, decided by High Court of Delhi on 10.07.2020], (iii) Jigar @ Jimmy Pravinchandra Adatiya Vs. State of Gujarat, 2022 Live Law (SC) 794.
11. The provisions of Section 36A of NDPS Act and the provisions of Section 167 Cr.P.C. are quoted below:-
36A. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b) Where a person accused of or suspected of the commission of an Page No.# 7/14 offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court where such Magistrate considers-
(i) When such person is forwarded to him as aforesaid; or
(ii) Upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;
(d) A Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36 (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":
Page No.# 8/14 Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.
167. Procedure when investigation cannot be completed in twenty- four hours.- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence, And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be Page No.# 9/14 deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.
Explanation II. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
Page No.# 10/14 (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
12. On a perusal of the materials available on record, there is no doubt that in this case, (i) the petitioner was not given any notice of application filed by the prosecution for extension of time; (ii) on 22.07.2022, when the said petition was moved, the petitioner was not produced before the Court of the learned Special Judge, Kamrup (Metro), Guwahati; and (iii) the Public Prosecutor had merely did signed the petition while filing the same and that the said petition was not accompanied by his report. The learned standing counsel for the respondent could not show anything on the contrary.
13. Thus, in light of the case citations referred by the learned counsel for the petitioner, which in brief is discussed herein before, the impugned order dated 22.07.2022 is not sustainable on facts and in law. Nonetheless, from the records produced by the learned Standing Counsel for the DRI, the prosecution has submitted charge-sheet and/or Final Report against the petitioner on 22.09.2022, and consequently, the case is now Page No.# 11/14 registered and tried as Sessions Case No. 215/2022.
14. In this regard, the learned standing counsel for the respondent had submitted that as the petition no. 2099/2022 was filed by the Public Prosecutor, it amounts to application of mind by him has to be rejected because in the case of Sanjay Dutt v. State through C.B.I., Bombay (II), (1994) 5 SCC 410, the Supreme Court of India while interpreting the provisions of Section 20(4)(bb) of the TADA Act and right of the accused for default bail under Section 167(2) Cr.P.C. and in the context of report required to be filed by the Public Prosecutor, did not express any contrary opinion insofar as the requirement of the report of the Public Prosecutor for grant of extension is concerned or on the effect of the absence of such a report under clause (bb) of Section 20(4), but observed that the 'notice' contemplated in the decision in the case of Hitendra Vishnu Thakur (supra) before granting extension for completion of investigation is not to be construed as a "written notice" to the accused and that only the production of the accused at the time of consideration of the report of the Public Prosecutor for grant of extension and informing him that the question of extension of the period for completing the investigation was being considered would be sufficient notice to the accused.
15. Moreover, in the case of Jigar @ Jimmy Pravinchandra Adatiya (supra), cited by the learned standing counsel for the respondent, reference has been made to the case of Devinderpal Singh v. Government of NCT of Delhi, (1996) 1 SCC 44, reiterating the observations made by the Supreme Court of India in the case of Hitendra Vishnu Thakur (supra) as explained in the case of Sanjay Dutt (supra), to the effect that requirement of report of the Public Page No.# 12/14 Prosecutor was not diluted and that production of accused before Court would constitute sufficient notice to the accused. Thus, in this case in hand, the mandatory requirement of production of the petitioner on 22.07.2022, when the prayer for extension of time to complete investigation was made and order was passed by the learned Special Judge, Kamrup (M), Guwahati was not done and therefore, the Court has no hesitation to hold that the mandatory requirement of producing the petitioner before the Court on 22.07.2022, when the impugned order was passed was not complied with and therefore, the petitioner had no notice of the petition no. 2099/2022 dated 22.07.2022. Moreover, along with the said petition dated 22.07.2022, no report of the Public Prosecutor was presented for the consideration of the Court.
16. Thus, the cases of Jigar @ Jimmy Pravinchandra Adatiya (supra) and Sharjeel Imam (supra) are not found to be the authority on the point that the Court has the power to grant enlargement of time to complete investigation without notice to the accused and/or without production of the accused on the date when such a petition is considered. The said cases are also not authorities on the point that if a petition filed by the Investigating Officer is filed by the Public Prosecutor, it amounts to application of mind by the Public Prosecutor that such a petition partakes the character of a "report by the Public Prosecutor"
as contemplated under Section 36A(4) of the NDPS Act.
17. Therefore, the Court is of the considered opinion that the petitioner has been able to make out any case for setting aside and for quashing of the impugned order dated 22.07.2022, passed by the Court of the learned Special Judge, Kamrup (M), Guwahati in the herein before referred DRI case.
Page No.# 13/14 Thus, this petition is allowed and the impugned order dated 22.07.2022, passed by the learned Special Judge, Kamrup (M), Guwahati on petition no. 2099/2022 is hereby set aside and quashed.
18. It is projected that the petitioner was arrested on 04.02.2022. Therefore, on a rough calculation, the period of 180 days would be over on 03.08.2022. Thus, on 22.07.2022, when the impugned order was passed, the said period of 180 days as contemplated under Section 36 of NDPS Act to complete the investigation was not over. Moreover, there is nothing on record that on completion of the said period of 180 days, the petitioner had moved the Court for default bail. Therefore, the Court is inclined to grant liberty to the petitioner to approach the Court of the learned Special Judge, Kamrup (M), Assam and apply for bail. If such an application is made, the said learned Court would have the liberty to consider the prayer for bail in accordance with law, by taking note of the fact as to whether or not final report had been filed by the prosecution on 22.09.2022 and by taking into other parameters as required for considering the prayer for bail.
19. Before parting with the records, it is clarified that the observations made herein is not intended to prejudice the petitioner in course of the trial and therefore, the learned trial Court shall proceed uninfluenced with the observations made herein.
20. Petition stands allowed to the extent as indicated herein before.
Page No.# 14/14 JUDGE Comparing Assistant