Karnataka High Court
Sri Nitin vs State Of Karnataka on 30 June, 2021
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30th DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.4061 of 2021
BETWEEN
SRI NITIN
S/O. SRI PURUSHOTHAM,
AGED ABOUT 25 YEARS,
RESIDENT OF No.24,
13TH MAIN, VIJAYANAGAR,
BENGALURU - 560 040.
...PETITIONER
(BY SRI Y.R. SADASIVA REDDY, SR. ADVOCATE a/w
SRI CHANDRASHEKAR P., ADVOCATE)
AND
STATE OF KARNATAKA
THROUGH VIJAYANAGAR POLICE STATION,
BENGALURU,
REPRESENTED BY THE PUBLIC PROSECUTOR,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
READ WITH SECTION 167(2) OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CRIME No.240/2020 REGISTERED BY VIJAYANAGARA POLICE
STATION, BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 8(c) AND 22(c) OF THE NDPS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
through video conferencing THIS DAY, THE COURT MADE THE
FOLLOWING:
2
ORDER
This petition is filed by the petitioner-accused under Section 439 read with 167(2) of Cr.P.C. for default bail in Crime No.240/2020 registered by the Vijayanagar Police Station for the offences punishable under Sections 8(c) and 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS' Act).
2. Heard the arguments of Sri Y.R. Sadasiva Reddy, learned Senior counsel along with Sri Chandrashekar.P, learned counsel appearing for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The case of the prosecution is that a complaint came to be filed by the Vijayanagar Police on 23.10.2020 alleging that the petitioner was found in possession of MDMA Crystals and Ecstasy Tablets having purchased the same through Post from Netherland, Poland, Germany and other places for selling the same to his clients and college students. Therefore, the petitioner was arrested and remanded to judicial custody. Hence, he filed a bail petition in 3 Crl.P.7498/2020 before this Court, which came to be rejected on 10.03.2021. In view of remanding the accused to the custody on 24.10.2020, the Investigating Agency is required to submit the final report within 180 days as per the Section 36(A)(4) of the NDPS Act. But, the Investigating Agency failed to file the charge sheet within 180 days, but filed an application under Section 36(A)(4) of the NDPS Act for extension of time for the purpose of receiving the FSL Report. The application of the Investigating Agency was pending and in the meanwhile, an application under Section 167(2) of Cr.P.C. for default bail came to be filed. The Trial Court vide order dated 17.05.2021 allowed the application of the Public Prosecutor filed under Section 36(A)(4) of the NDPS Act seeking extension of time in filing the charge sheet and rejected the bail application under Section 167 of Cr.P.C. Hence, the petitioner is before this Court.
4. Learned Senior counsel appearing for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Sanjay Kumar Kedia @ Sanjay Kedia vs. The 4 Intelligence Officer, Narcotic Control Bureau and another reported in (2009)17 SCC 631 and M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence in Criminal Appeal No.699/2020 on 26.10.2020 and the judgment of a co-ordinate Bench of this Court in Crl.P.No.6322/2020, disposed on 17.12.2020.
5. On perusal of the record, the point that arises for consideration is as follows:
"Whether the petitioner is entitled for bail under Section 167(2) of Cr.P.C. in view of non-filing of the charge sheet within 180 days and the Trial Court illegally extending time as per Section 36(A)(4) of NDPS Act?"
6. The material on record goes to show that the petitioner was arrested on 23.10.2020 and remanded to judicial custody on 24.10.2020. On a careful perusal of the remand, the custody of the petitioner is as follows; 5
October - 08 days;
November - 30 days;
December - 31 days;
January - 31 days;
February - 28 days;
March - 31 days
April - 21 days.
Total - 180 days.
Admittedly, the expiry of the custody falls on 21.04.2021. Though the Investigating Agency filed an application through the Public Prosecutor under Section 36(A)(4) of NDPS Act on 02.04.2021, but the same was not considered by the Trial Court and the time was not extended prior to 21.04.2021 when 180 days expires. In the meanwhile, the petitioner has moved an application under Section 167(2) of Cr.P.C. on 30.04.2021, but the Trial Court for the reasons best known it, allowed the application filed by the Public Prosecutor only on 17.05.2021 and rejecting the bail petition under Section 167(2) of Cr.P.C. Though the Court has power to extend the time under Section 36(A)(4) of NDPS Act beyond 180 days, as per the criteria, on the report of the Public Prosecutor 6 indicating the progress of the investigation and for the specific reason, the detention of the accused can be beyond 180 days. But except waiting for the report of the Forensic Science Laboratory (FSL), there is no specific reason of investigation to seek extension of time for filing the charge sheet. That apart, the Trial Court has considered the application and passed the order only on 17.05.2021 by extending the time. Nevertheless, the period from 22.04.2021 till 17.052021 amounts to illegal detention by the Court without passing the order on the application filed by the Public Prosecutor for extension of time. It cannot be said that once the application is allowed, it refers to the retrospective effect of detaining the accused in custody. Therefore, I am of the view that without expressing any opinion on the merits of the case and in view of the guidelines issued in the case of Ravindran and in Sanjay Kumar Kedia (supra) and a co-ordinate Bench of this Court has granted bail in Crl.P.No.4398/2020 c/w 4522/2020 on 05.10.2020 and in Crl.P.No.6322/2020 on 17.12.2020, this petitioner is also entitled for default bail under Section 7 167(2) of Cr.P.C. in view of non-filing of the charge sheet within 180 days and also not assigning any reason for extension of time and passing of the order beyond the detention period of 180 days. Hence, the following:
Order Criminal Petition is allowed.
The Trial Court is directed to release the petitioner- accused on bail in Crime No.240/2020 registered by the Vijayanagar Police Station for the offences punishable under Sections 8(c) and 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS' Act), subject to the following conditions:-
i) Petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the Trial Court.
ii) Petitioner shall not indulge in similar offences.
iii) Petitioner shall not tamper with the prosecution witnesses directly or indirectly.8
iii) Petitioner shall appear before the Investigating Officer as and when called for, for further investigation..
iv) Petitioner shall not leave the jurisdiction of this Court without prior permission.
Sd/-
JUDGE mv