Kerala High Court
Shamseer .K vs State Of Kerala on 11 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:69119
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
BAIL APPL. NO. 6391 OF 2024
CRIME NO.883/2024 OF MANJERI POLICE STATION, MALAPPURAM
PETITIONER/ACCUSED:
SHAMSEER .K,
AGED 34 YEARS
S/O. MOIDEEN, KARUTHEDATHU HOUSE,
VALLUVANGAD P.O., PANDIKKAD,
MALAPPURAM DISTRICT, PIN - 676125
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
ALWIN JOSEPH
BENSON AMBROSE
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 THE STATION HOUSE OFFICER,
MANCHERRY POLICE STATION,
MALAPPURAM DISTRICT, PIN - 676121
BY SMT. SEETHA. S
SENIOR PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
11.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2024:KER:69119
B.A.No.6391 of 2024 -:2:-
Dated this the 11th day of August, 2024
ORDER
The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the first accused in Crime No.883/2024 of the Manjeri Police Station, Malapppuram, which is registered against the persons for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act ('the Act' for short), 1985. The petitioner was arrested and remanded to judicial custody on 08.07.2024.
2. The crux of the prosecution case is that:
on 08.07.2024, at around 17:00 hours, the accused 1 and 2 were found in conscious possession of 37.080 grams of MDMA. The accused were arrested on the spot with the contraband article. Thus, the accused have committed the above offences.
3. Heard; Sri. P. Mohamed Sabah, the 2024:KER:69119 B.A.No.6391 of 2024 -:3:- learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the case. The petitioner has reliably learnt that, as per the chemical analysis report, the contraband involved in the case is 'methamphetamine' and not 'MDMA'. Therefore, the contraband involved is of an intermediate quantity. Even though the petitioner has been in judicial custody since 08.07.2024, the investigation in the case is not complete, the offence alleged against the petitioner is punishable for a period up to 10 years, and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail as contemplated under sub-section (2) of Section 167 of the Code read with Section 36A(4) of the NDPS Act. Hence, the application may be allowed.
2024:KER:69119 B.A.No.6391 of 2024 -:4:-
5. The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also stated that the petitioner is involved in two other crimes of similar nature. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, she made available the chemical analysis report submitted by the Regional Chemical Examiner's Laboratory, Kozhikode, dated 05.09.2024, which shows that the contraband involved in the case is 'methamphetamine' and not 'MDMA', as alleged by the prosecution.
6. The prosecution was lodged against the accused on the principal allegation that they were found in conscious possession of 37.080 grams of MDMA. Indisputably, the contraband involved in the case is of an intermediate quantity. As per the chemical analysis report referred to above, the contraband has turned out to be methamphetamine. Going by the quantity of the 2024:KER:69119 B.A.No.6391 of 2024 -:5:- contraband involved in the case and as per the specification under the Act, the contraband involved in the case is of an intermediate quantity. Therefore, the maximum punishment that can be imposed on the petitioner is up to 10 years. Indisputably, the investigation in the case is not complete, and the final report has not been laid. Therefore, in view of Section 167(2) of the Code and 36A(4) of the NDPS Act, the petitioner is entitled to statutory bail.
7. It is apposite to extract Section 36A(4) of the Act, which reads as follows:
" (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"
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 2024:KER:69119 B.A.No.6391 of 2024 -:6:- 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."
8. Similarly, Subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:-
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 wellfounded, 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 an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for 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-- 2 [(a) the Magistrate may authorise 2024:KER:69119 B.A.No.6391 of 2024 -:7:- the detention of the accused person, otherwise than in 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 deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise 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.] 2024:KER:69119 B.A.No.6391 of 2024 -:8:- [Explanation II.--If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]
9. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in Sanjay Dutt v.State through C.B.I., Bombay [(1994) 5 SCC 410] has observed as follows:-
"53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to 2024:KER:69119 B.A.No.6391 of 2024 -:9:- the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."
10. A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], reiterated the legal proposition in Sanjay Dutt v.State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus:
"13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate."
(emphasis added)
11. In the instant case, the petitioner has been in judicial custody since 08.07.2024 and the Investigating 2024:KER:69119 B.A.No.6391 of 2024 -:10:- Officer has not laid the final report till date. Hence, I am convinced that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Sections 36A(4) of the Act and 167(2) of the Code. Hence, I allow the bail application, but subject to stringent conditions:
In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:
(i) The petitioner shall appear before the Investigating Officer on every second and fourth Saturdays between 9 a.m. and 11 a.m till the final report is filed. He shall also appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of trial in Crime No.883/2024 ;
(ii) The petitioner shall not directly or indirectly 2024:KER:69119 B.A.No.6391 of 2024 -:11:- make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;
(iii) The petitioner shall not commit any offence while he is on bail;
(iv) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
(v) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.
(vi) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the 2024:KER:69119 B.A.No.6391 of 2024 -:12:- information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].
Sd/-
C.S.DIAS,JUDGE mtk/11.07.24 2024:KER:69119 B.A.No.6391 of 2024 -:13:- APPENDIX OF BAIL APPL. 6391/2024 PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 883 OF 2024 OF MANCHERRY POLICE STATION, MALAPPURAM DISTRICT Annexure 2 TRUE COPY OF THE BIRTH REPORT ISSUED FROM THE GOVERNMENT MEDICAL COLLEGE HOSPITAL, MANJERI Annexure 3 TRUE COPY OF THE PROCEEDINGS DATED 31.07.2024 IN CRL.M.P. NO. 814/2024 ON THE FILE OF THE SPECIAL COURT FOR SC/ST POA & NDPS ACT CASES, MANJERI, PUBLISHED IN THE OFFICIAL WEBSITE OF E- COURTS