Karnataka High Court
Shri Naseer Ahmed vs Superintendent Of Customs on 7 March, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.K.SREEDHAR RAO, ACTING CHIEF JUSTICE
CRL.PETITION No.6110/2012
BETWEEN :
SHRI NASEER AHMED
S/O SHRI HASSAN ALI
R/AT HAZAARUMAAGE
V. FULIDHOO
REPUBLIC OF MALDIVES &
PASSPORT NO.E0407682
... PETITIONER
(By Sri.K S VISHWANATH & SRI.GANGADHARAPPA, ADVS.,)
AND
SUPERINTENDENT OF CUSTOMS
AIR INTELLIGENCE UNIT,
BIAL, BANGALORE-560300
REP BY SPECIAL PUBLIC PROSECUTOR
... RESPONDENT
(By Sri.URVAL N RAMANAND, ADV.,)
THIS CRL.P FILED U/S.439 R/W.167(2) OF CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO ENLARGE THE
PETITIONER ON BAIL U/S.167(2) OF CR.P.C. IN
OR.No.50/2011-12 OF SUPERINTENDENT OF CUSTOMS, AIR
INTELLIGENCE UNIT, INTERNATIONAL AIRPORT, BANGALORE,
PENDING IN SPL. C.C. No.184/2012 ON THE FILE OF HON'BLE
SPL. JUDGE FOR NDPS., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
The petitioner was found in possession of 350 gms of Heroin in the Bangalore International Airport on 19.03.2012 at 9.50 P.M. The petitioner had come from Maldives to Bangalore and was proceeding to Colombo. The officers of the respondent have arrested him on the same date and time and produced before the Magistrate on 20.03.2012 and was kept in judicial remand from time to time. After the completion of the investigation, the complaint is filed before the jurisdictional Court under Section 200 of Cr.P.C which included all the investigation materials, on 25.09.2012. The petitioner had made an application for bail on 17.09.2012 seeking statutory bail under Section 167(2) of Cr.P.C. The respondent has opposed the bail application. The Trial Court has dismissed the bail application. Hence, this petition for bail.
2. The provisions of Section 36(A)(4) and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) reads thus;
" 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 3 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 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 authorize 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 authorized 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 a 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 authorized in his 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 4 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'':
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.]"
37. Offences to be cognizable and non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an [offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-5
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]"
3. The provisions of Section 36(A)(4) of the NDPS Act is analogues to the provisions of Section 167(2) of Cr.P.C with a difference regarding the period of detention. Under Section 167(2) of Cr.P.C the maximum period of detention for a case not triable by Sessions is 60 days and in case of Sessions trial 90 days, the investigation to be completed and Final Report to be filed. The Supreme Court in Union of India vs. Thamisharasi and others in (1995) 4 SCC 190 while interpreting the provisions of Section 167 (2) of Cr.P.C has held that the Court has no power to keep the accused in judicial custody beyond the period mentioned therein and if the investigation is not complete, the accused would get statutory right to seek bail without reference to the merits. The Provisions of Section 36 A (4) of the NDPS Act prescribes maximum period of detention of 180 days and that the investigation agency should file the Final 6 Report or the complaint within the said period. If not done, what is the effect is the question involved.
4. The provisions of Section 37 of the NDPS Act departs from the general principles of grant of bail under Section 437 of Cr.P.C. The prosecution should prima facie prove the guilt of the accused under Section 437 of Cr.P.C to resist the bail application, but under Section 37 of the NDPS Act, the situation is converse, the accused has to prove prima facie his innocence to take bail. Therefore onus could be on the accused to prove his innocence. The question now arises is as to whether Section 37 of the NDPS Act should be read in conjunction with Section 36 A(4) of the NDPS while granting bail or should Section 36 A (4) of the NDPS Act should be read independently.
5. The Supreme Court in Rajwinder Singh vs. State of Punjab in Crl.Misc.No.M-35502/2011 has made the following observations;
" I have considered the orders dated October 12, 2011. It is a settled principle of law as laid down by the Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra, AIR 2001 SC 1910 laying down that if the challan is not presented within the period stipulated in Section 167 (2) Cr.P.C. accused gets an indefeasible right to get bail and that subsequent Crl. Misc.No.M-35502 of 2011 [3] filing of challan during the pendency of the bail application will 7 not extinguish an indefeasible right of an accused to get bail. In the present case in the light of provisions of Section 167 (2) Cr.P.C. read with Section 36 A (4) of the NDPS Act, challan was required to be filed within 180 days by the prosecution agency as it was not filed, the petitioner had exercised his right under Section 167 (2) Cr.P.C. on October 4, 2011. Section 36 A (4) of the NDPS Act reads as follows:- "Section 36 A (4): In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27 A 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 upto 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." No doubt, on the basis of the powers conferred in the Court under Section 36 A (4) of the NDPS Act as mentioned above, the Special court can extend the period of presentation of challan beyond 180 days on Crl. Misc.No.M-35502 of 2011 [4] an application of Public Prosecutor indicating the progress of the investigation and the specific reason for detention of the accused beyond a period of 180 days. The Apex Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau, 2009 (17) SCC 631 has observed that in application for extension of time under Section 36 A (4) of 8 the NDPS Act, the investigating officer is required to specifically mention the progress of the investigation and the compelling reasons which are required for extension of custody beyond 180 days. A notice is also required to be issued to the accused before allowing such application for extension of custody.
In the present case, no reason was given for extension of custody for offence under Section 15 of the NDPS Act but reason had been given for extension of custody for not presentation of challan under Section 25 of the Arms Act. There was no bar for the prosecution agency to present challan against the petitioner for offence under Section 25 of the Arms Act before the Magistrate on expiry of 60 days by segregating the allegations under Section 25 of the Arms Act.
Without expression of any opinion whether the prosecution agency could have presented separate challan under Section 25 of the Arms Act after obtaining sanction under the Arms Act, it is sufficient to observe that indefeasible right had accrued to the petitioner on October 1, 2011 when he filed an application under Section 167 (2) Cr.P.C. on expiry of period of 180 days. The application under Section 167 (2) Cr.P.C. was filed by the petitioner on October 4, 2011. After October 1, 2011, a Crl. Misc. No. M-35502 of 2011 [5] indefeasible right had accrued to the petitioner to be released on bail, the said right could not have been defeated by the prosecution agency by filing an application on October 7, 2011 under Section 36 A (4) of the NDPS Act. It is not disputed that the provisions of Section 167 (2) Cr.P.C. are applicable to the offence under the NDPS Act.
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In view of above circumstances, the petitioner deserves to be released on bail as indefeasible right has been accrued to him to be released on bail as challan had not been filed by October 1, 2011. Petition is allowed. Petitioner is ordered to be released on bail under Section 167 (2) Cr.P.C. on his furnishing bail bonds/ surety bonds to the satisfaction of the Special Judge.
6. A close reading of the ratio laid down in Thamisharasi and Rajwinder Singh it becomes explicit that the accused would have right of statutory bail under Section 36 A (4) of the NDPS Act, if complaint or Final Report is not filed within the period of 180 days. In that view of the matter, the petitioner is entitled to bail.
7. Accordingly, the petition is allowed. The petitioner is granted bail on executing a bond for a sum of Rs.25,00,000/- (Rupees Twenty-five Lakhs Only) with a like surety and a cash surety of Rs.5,00,000/- (Rupees Five Lakhs only). The petitioner is directed to mark his attendance before the Upparpet Police Station daily between 8.00 P.M to 9.00 P.M till the disposal of the case. The Trial Court shall dispose of the case within three months and shall hold trial on day-to-day basis, since he is a foreign national.
Sd/-
ACTING CHIEF JUSTICE mv