Karnataka High Court
Mr Vijesh K V vs State Of Karnataka By on 24 January, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF JANUARY 2014
BEFORE
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.54 OF 2014
BETWEEN
MR VIJESH K V
S/O MANOJ C.V.
AGED ABOUT 20 YEARS,
R/AT KUNNARUVARTHU VEEDU,
NEAR MANINYOT TEMPLE,
P.O.KOANCHANGAD,
KASARGOD TALUK & DISTRICT,
KERALA STATE-670315. ... PETITIONER
(By Sri: NISHIT KUMAR SHETTY, ADV., )
AND
STATE OF KARNATAKA BY
PSI BAJPE POLICE STATION,
D.K. MANGALORE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
... RESPONDENT
(By Sri:NASRULLA KHAN, HCGP)
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THIS CRL.RP IS FILED U/S.397(2) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED:3.1.14 PASSED BY THE
PRL.SESSIONS JUDGE, MANGALORE IN CRIME NO.235/13 OF
BAJPE P.S., AND RELEASE THE PETR. ON STATUTORY BAIL U/S
167(2)(a)(ii) OF CR.P.C.
THIS CRL.RP COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
This criminal revision petition under Section 397 of Cr.P.C. is directed against the order dated 3.1.2014 in Cr.No.235/2013 of Bajpe police station, on the file of Prl. Sessions Judge, Dakshina Kannada, whereby the application under Section 167(2) of Cr.P.C. filed by the accused-revision petitioner came to be dismissed.
2. On 8.10.2013, the Bajpe police arrested the petitioner-accused as he was found in possession of three kilograms of ganja in polythene bag in Mangalore International Airport and a case in Cr.No.235/2013 came to be registered against him for the offences punishable under Section 20(b) (1)A, 8A(C)) of Narcotic Drugs & Psychotropic Substances Act, 1985 and the seizure has been reported to the Prl. Sessions Judge, Mangalore, Dakshina Kannada. The accused was produced before the Court on 9.10.2013 and he was remanded to judicial custody on the same day. Even after lapse of 60 days from the date of his remand to the judicial custody, the investigation Officer failed to file a charge-sheet. As such, 3 the accused filed an application under Section 167(2) Cr.P.C. for his enlargement on bail on account of default of the Investigating Officer to file a charge-sheet within a stipulated period of 60 days. The application was opposed by the Public Prosecutor. It was heard by the Prl. Sessions Judge and by his order dated 3.1.2014, the application came to be rejected, against which, this revision petition is preferred.
I have heard learned counsel appearing for the petitioner-accused and High Court Government Pleader Sri. Nasrulla Khan for the respondent-State. Perused the impugned order passed by the Sessions Judge.
3. The reasons which prompted the Sessions Judge to reject the application filed by the accused are incorporated in para 14 of the impugned order, which reads as under:-
"In 2012(4) KCCR 2642 (Mohammad Irfan vs. State of Karnataka by Coastal Security Police), Hon'ble High Court of Karnataka had an owccasion to deal with similar issue. The accused was brought before the Court for offence punishable under section 20(b) 4 of NDPS Act. One kg of brown sugar was seized. The Hon'ble High Court observed that under section 36-A of NDPS Act, the period of filing of final report within 90 days occurring under Section 167(2) of Cr.P.C. is extended to 180 days in respect of offence punishable under Sections 19, 24 and 27-A of NDPS Act involving commercial quantity. Therefore, it can be said that the provisions of section 167(2) Cr.P.C. are not applicable to the case on hand and the accused is not entitled for such benefit".
4. It is not in dispute that the quantity of ganja that is seized from the possession of the accused is 3 kg, for which the punishment prescribed is upto 10 years imprisonment under Section 20(b)(i) of NDPS Act.
5. Proviso to Section 167(2) (a) read as under:-
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 authorize the detention of the accused person in custody under this paragraph for a total period exceeding-5
(i) ninety days, where the investigation relates to an offence punishable with death imprisonment for live 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.
Thus from the reading of proviso to Section 167(2)
(a), it is abundantly clear that in case of an offence, the punishment prescribed for which is upto 10 years. The maximum period that an accused person can be detained in the custody is 60 days. The offence said to have committed by the accused is punishable under Section 20(b) of the Act and the punishment prescribed is upto 10 years imprisonment. But, the learned Sessions Judge has wrongly interpreted Section 167(2) of Cr.P.C. to the facts of this 6 case and rejected the application. It appears that the learned Sessions Judge has not read carefully the decision of the High Court in the case of Mohammed Irfan Vs. State of Karnataka by Coastal Security Police, reported in 2012 (4) KCCR 2642. In the said case, what was seized is 1 kg of brown sugar, which is classified as 'commercial' quantity, for which the punishment prescribed is rigorous imprisonment for a term which shall not be less than 10 years, which may extend to 20 years and shall also be liable for fine. In that case, the Sessions Judge is authorized to detain the accused person in custody for a total period of 180 days. The Sessions Judge has wrongly applied the aforesaid decision of this Court and rejected the application filed by the accused. He failed to notice that the punishment prescribed in case of possession of 1 kg of brown sugar and punishment prescribed for possession of 3kg of ganja and thereby the impugned order led to miscarriage of justice. Since the accused was already in custody for more than 60 days from the date of his remand as on the date of filing of the application for bail before the Sessions Judge, he entitled to be released on bail. Even 7 after the application, charge-sheet is filed, the indefensible right to release him on bail on account of default on the part of the Investigation Officer to file charge-sheet within 60 days does not extinguish as held by the Supreme Court in the case of UDAY MOHANLAL ACHARYA Vs. STATE OF MAHARASHTRA reported in AIR 2001 SC 1910.
6. Hence, I pass the following order:-
The Criminal Revision Petition is allowed. The order dated 03.01.2014 passed by the Principal Sessions Judge, Dakshina Kannada, Mangalore, in Crime No.235/2013 of Bajpe Police Station, rejecting the application under Section 167(2) of Cr.P.C. filed by the petitioner/accused, is hereby set aside.
The application filed by the petitioner/accused under Section 167(2) of Cr.P.C. is allowed. The accused is enlarged on bail on account of the default of the Investigating Officer to file charge-sheet within the stipulated period of time subject to the following conditions:-8
i) The accused shall execute a self-bond for a sum of Rs.50,000/- (Rupees Fifty Thousand) with a surety for the likesum to the satisfaction of the Sessions Judge;
ii) He shall surrender his passport before the Sessions Court;
iii) He shall not tamper with the prosecution witnesses.
Sd/-
JUDGE *pmr/mn/-