Kerala High Court
Roopesh T.U vs State Of Kerala on 28 September, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942
Bail Appl.No.4204 OF 2020
AGAINST THE ORDER/JUDGMENT IN CMA 335/2020 DATED 03-06-2020 OF
ADDITIONAL DISTRICT COURT, THRISSUR
CRIME NO.28/2019 OF Thrissur Excise Range Office , Thrissur
PETITIONER/S:
ROOPESH T.U.
AGED 32 YEARS, S/O UNNIKRISHNAN,
THONNAMKAVIL HOUSE, PANAMUKKU,
KANIMANGALAM VILLAGE, THRISSUR TALUK,
THRISSUR, PIN - 680 007.
BY ADV. SRI.VINAY RAMDAS
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682 031.
OTHER PRESENT:
SRI.C.N.PRABHAKARAN, SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
28.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BA 4204/2020
2
O R D E R
Dated this the 28th day of September 2020 Application for bail under Section 439 Cr.P.C. The applicant is the 1st accused in Crime No.28/2019 of Excise Range, Thrissur for having allegedly committed offences punishable under Sections 32B(a), 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 ('NDPS Act', for short).
2. The prosecution case, in brief, is that on 05.10.2019 the applicant and the 2nd accused were arrested for having been in possession of 226.130 Kgs. of Ganja. The applicant was remanded to judicial custody on 06.10.2019 and continues to remain in jail. The Public Prosecutor filed an application before the Special Court, Thrissur on 25.03.2020 seeking an extension of the period stipulated under sub-Section (4) of Section 36A of the NDPS Act for investigation beyond a period of 180 days. For the reasons stated in Annexure-3 application, the learned Sessions Judge vide Annexure-4 order allowed the extension by granting a further time of 90 days for investigation. On 21.05.2020, the Public Prosecutor filed yet another BA 4204/2020 3 application seeking extension of the time beyond the period of 90 days allowed by the Court as Annexure-5. And the Court granted a further extension of 90 days vide Annexure-6 order. The bail application filed by the accused was considered on 03.06.2020 and dismissed vide Annexure-7.
3. The applicant is aggrieved with the rejection of his bail application and has, therefore, approached this Court for indulgence. It is stated by the applicant that the extension of time to complete investigation by the Designated Court was improper, and that he is entitled to default bail under Section 36A(4) of the NDPS Act read with Section 167(2) of the Cr.P.C., for the following reasons :-
Firstly, that no notice was served upon him on Annexure-3 application and that the Court had passed Annexure-4 order without hearing him. The bail application filed by the applicant was already on record, but it was not considered along with Annexure-3 application for extension, which was not justified.
Secondly, it is stated that Annexure-3 application does not fulfill the requirements of Section 36A(4) of the NDPS Act. There is no application of mind by the Public Prosecutor in seeking the extension.BA 4204/2020 4
Thirdly, the order partly allowing Annexure-3 application and granting a period of 90 days more for completing the investigation by the Court is by a non-speaking at Annexure-4. Not being satisfied with the extension of 90 days, the Public Prosecutor filed yet another application for extension as per Annexure-5 and the Designated Court was pleased to grant a further extension of 90 days, that too by yet another non-speaking order at Annexure-6. The applicant states that neither Annexures-3 and 5 applications nor Annexures-4 and 6 orders indicate application of mind as required under sub-Section (4) of Section 36A of the NDPS Act.
And, therefore, the applicant prays that he is entitled to statutory bail under Section 36A(4) of the NDPS Act read with Section 167(2) Cr.P.C.
4. Heard the learned Counsel for the applicant, Shri.Vinay Ramadas, and the learned Public Prosecutor Sri.C.N.Prabhakaran.
5. The learned Counsel places reliance on several decisions of the Hon'ble Apex Court as also of this Court in support of his arguments. He relies on Hitendra Vishnu Thakur & Others v. State of Maharashtra & Others [1984 (4) SCC 602], which was followed in another decisions Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer Narcotic Control Bureau and BA 4204/2020 5 another [2009 (17) SCC 631] and Sanjay Dutt V. State [1994(5) SCC 410] and Devinderpal Singh v. NCT [1996(1) SCC 44 1996: KHC 1386], in support of his argument regarding the necessity of serving of notice on the accused before granting an extension of the time fixed for completing the investigation and also the importance of application of mind by the Public Prosecutor while seeking an extension of time. Both the aforesaid decisions have been followed by this Court in Appukuttan v. State of Kerala [2013 KHC 3669] while granting statutory bail to the accused in that case.
6. Per contra, the learned Public Prosecutor submits that what is contemplated in the decisions of the Hon'ble Supreme Court in Hitendra Vishnu Thakur and Sanjay Dutt and Devinderpal Singh (Supra) does not insist on serving the accused with a written notice before extension of time sought by the prosecution for completing investigation. The presence of the accused is sufficient. Annexures-4 and 6 orders of the Designated Court indicate the presence of the accused. It is further argued by the learned Prosecutor that in Annexures-3 and 5 applications, the Prosecutor has stated in detail the reasons for seeking an extension of time for completing the investigation. The BA 4204/2020 6 Designated Court has passed Annexures-4 and 6 orders after being convinced about the reasons stated by the Prosecutor in his applications for extension. The mere fact that those applications are disposed of by the learned Designated Judge by a cryptic order alone may not be a reason to disallow the extension sought to complete the investigation. Even if there is some lacuna in the orders impugned, this Court can consider the reasons mentioned in Annexures-3 and 4 and make orders accordingly. It is submitted that the applicant has been in possession of a huge quantity of Ganja, and therefore, he should not be released on statutory bail.
7. In Hitendra Vishnu Thakur's case (supra), the Hon'ble Apex Court while dealing with an analogous provision in Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA, for short) observed thus : --
"Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency, is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or BA 4204/2020 7 application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "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" as occurring in clause (bb) in sub-section (2) of S.167 as amended by S.20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report because the consequence of its acceptance affects the liberty of an accused and it must, therefore strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor."
8. In Hitendra Vishnu Thakur's case (supra), the Hon'ble Supreme Court was dealing with the proviso inserted as clause (bb) to sub-section (4) of Section 20 of the TADA, which is pari materia with the proviso to sub-section (4) of Section 36A of the NDPS Act. The Court accepted the argument of the accused that an extension beyond 180 days could be granted, but laid a rider that it could be so after certain conditions were BA 4204/2020 8 satisfied. It was observed:
"It is true that neither clause (b) nor clause (bb) of sub-section (4) of S.20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the Courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party."
9. In Hitendra Vishnu Thakur's case (supra) it was opined that no extension can be granted by the Designated Court under Clause (bb) of Section 20(4) of TADA, unless the accused is put on notice and permitted to have his say so as to be able to object to the grant of extension. Though the Constitution Bench in Sanjay Dutt's case (supra) did not express any contrary opinion in so far as the requirement of the report of the Public Prosecutor for grant of extension is BA 4204/2020 9 concerned or on the effect of the absence of such a report under clause (bb) of Section 20(4) of TADA, but observed that 'notice' contemplated in the decision in Hitendra Vishnu Thakur's case 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 of the period for completing the investigation was being considered would be sufficient notice to the accused.
10. In Sanjay Kumar Kedia @ Sanjay Kedia (supra), considering the requirements of sub-section (4) of Section 36A of the NDPS Act, following the decision in Hitendra Vishnu Thakur's case (supra) found that a bare perusal of the application for extension shows that it has been filed by the investigating officer and does not indicate, even remotely, any application of mind on the part of the Public Prosecutor. It further does not indicate the progress of the investigation, nor the compelling reasons which required an extension of custody beyond 180 days.
11. The maximum period of 90 days fixed under Section 167(2) of the Cr.P.C. has been increased to 180 BA 4204/2020 10 days for several categories of offences under the NDPS Act, but the proviso authorizes a yet further period of detention which may, in total, go upto one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are:
(1) a report of the Public Prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused.
12. The question to be decided is whether the two applications at Annexures-3 and 5 for extension that had been filed by the Public Prosecutor seeking an extension beyond 180 days met the aforesaid necessary conditions, keeping in mind the above cited precedents. And whether the applicant was notified about seeking such extension. Lastly, it needs to be considered whether the Designated Court had considered the requirements prior to allowing the extension. BA 4204/2020 11
13. As regards the serving of notice on the accused before considering the prayer for extension, all that is required as per the 'notice' contemplated in the decision in Hitendra Vishnu Thakur's case (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 of the period for completing the investigation was being considered, would be sufficient notice to the accused. The applicant was not present while Annexure-4 Order was pronounced. The order mentions the presence of only the Investigating Officer in person. There is no mention of the presence of either the accused or his Counsel. Not even the presence of the prosecutor is mentioned. Hence, the order is not in accordance with the dictum in the above cited decisions.
14. The applications, Annexures-3 and 5, are made by the Prosecutor and not the Investigating Officer. Hence, the applications comply with the requirement that the extension is to be sought by the Prosecutor and not by the Investigating Officer. However, the progress of the investigation is not stated in detail BA 4204/2020 12 in Annexure-3 application. The Prosecutor was not even heard before granting extension, is admitted in the later application, Annexure-5. Hence, it is doubtful whether the Designated Court had applied its mind to consider the necessity of the extension of time to complete the investigation.
In the result, the Bail Application is allowed and the applicant is directed to be released on bail on execution of bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for like amount each to the satisfaction of the Designated Court and on following conditions:-
(i) He shall not get involved in similar cases during the currency of bail.
(ii) He shall surrender his passport before the Designated Court, and in case he does not passport, file an affidavit to that effect.
(iii) He shall appear before the investigating officer on all Saturdays between 9 AM and 12 noon for a period of three months or until filing of final report, whichever is earlier.
(iv) He shall not leave Kerala without obtaining the sanction of the Designated Court.BA 4204/2020 13
In case of breach of any of the conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the Designated Court.
Sd/-
dkr ASHOK MENON
JUDGE