Karnataka High Court
Mr Mohit Baliga vs State Of Karnataka on 25 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 1279, 2021 (3) AKR 579
Author: S Vishwajith Shetty
Bench: S. Vishwajith Shetty
W.P.10375/2021
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY
WRIT PETITION No.10375/2021 (GM-RES)
BETWEEN:
MR.MOHIT BALIGA
S/O SRI NISHIT T. BALIGA,
AGED ABOUT 23 YEARS,
R/A NO.018, B2-GANGA BLOCK,
NATIONAL GAMES VILLAGE,
KORAMANGALA,
BANGALORE - 560047. ... PETITIONER
(BY SRI.HASHMATH PASHA, SR. COUNSEL
FOR SRI.NASIR ALI, ADV.)
AND:
1. STATE OF KARNATAKA
BY KORAMANGALA POLICE STATION,
BANGALORE CITY - 560034.
2. MR.DEEPAK.R.,
POLICE INSPECTOR,
CENTRAL CRIME BRANCH POLICE,
N.T.PETE, BANGALORE - 560002. ...RESPONDENTS
(BY SRI V.M.SHEELVANT, SPP
FOR SRI R.D.RENUKARADHYA, HCGP)
W.P.10375/2021
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA AND SECTION 482 OF CR.P.C.,
PRAYING TO QUASH THE ORDER DATED 08.06.2021 PASSED IN
CRIME NO.93/2021 OF KORAMANGALA POLICE STATION,
BANGALORE WHICH IS ON THE FILE OF XLI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BANGALORE, AS PER ANNEXURE-
D, AS AN ABUSE OF PROCESS OF LAW AND CONSEQUENTLY
RELEASE HIM ON BAIL ON SUCH TERMS AND CONDITIONS IN
THE INTEREST OF JUSTICE AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.06.2021 AND COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Accused No.1 in Crime No.93/2021 registered by the Koramangala Police Station, Bengaluru City, has filed this writ petition with a prayer to quash the order dated 08.06.2021 passed in the said crime number by the court of XLI Additional C.M.M., Bengaluru, on the application filed by the petitioner under Section 167(2) of the Code of Criminal Procedure, 1973.
2. Brief facts of the case as revealed from the records are:
On the basis of a report submitted by the second respondent herein, FIR was registered in Crime W.P.10375/2021 3 No.93/2021 by the Koramangala Police on 01.04.2021 against the petitioner and another for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act of 1985").
3. It is averred in the complaint that the complainant received an information on 01.04.2021 at about 10.00 a.m. to the effect that a person standing in front of Yamuna Block of National Games Village, Koramangala, was trying to sell LSD (Lysergic Acid Diethylamide) substance to the public and immediately thereafter the respondent - Police rushed to the said spot and apprehended the petitioner and from his person, they seized 46 strips of LSD totally weighing 0.89 grams. Thereafterwards mahazar was drawn and the petitioner was arrested and produced before the Koramangala Police Station along with the seized substance and subsequently he was produced before the jurisdictional Magistrate on W.P.10375/2021 4 02.04.2021, who in turn remanded him to judicial custody. Thereafterwards periodically the learned Magistrate kept on remanding the petitioner to the judicial custody and on 07.06.2021, an application was filed on behalf of the petitioner under Section 167(2) of the Code of Criminal Procedure, 1973 (for short "the Code"), seeking statutory bail on the ground that the Police have failed to complete the investigation within the time prescribed and file the charge sheet. The learned Magistrate on receipt of such an application has passed the order impugned on 8.6.2021 directing the office to submit the entire papers to the Special Court as provided under Section 36A of the Act of 1985 and also directing the Investigating Officer to produce the petitioner/accused immediately before the Special Court and dismissed the application under Section 167(2) of the Code as not maintainable. Being aggrieved by the same, the petitioner is before this court.
W.P.10375/20215
4. Learned Senior Counsel Sri.Hashmath Pasha for the petitioner submits that the learned Magistrate has remanded the petitioner to custody even after expiry of the first fifteen days, which was totally illegal. He submits that the learned Magistrate had no jurisdiction to remand the petitioner after expiry of the first fifteen days of remand and therefore, the custody of the petitioner has resulted in illegal detention. He also submits that the Police have wrongly invoked Section 22(c) of the Act of 1985 whereas having regard to the quantity of the substance seized which is only 0.89 grams, which amounts to inter-mediate quantity, an offence under Section 22(b) of the Act of 1985 is attracted against the petitioner. He submits that for the offence under Section 22(b) of the Act of 1985, the period for completion of the investigation is 60 days and the Police having failed to complete the investigation and file the charge sheet within the said period, the petitioner is entitled for a W.P.10375/2021 6 statutory bail under Section 167(2) of the Code. He submits that before the learned Magistrate, the petitioner has exercised his right accrued to him under Section 167(2) of the Code for the lapse of the Police in completing the investigation within the prescribed period and therefore, the learned Magistrate ought to have considered his application favourably. He submits that the right for statutory bail under Section 167(2) of the Code has now been considered as a fundamental right and therefore, the same cannot be taken away other than in accordance with law.
5. Per contra, learned State Public Prosecutor Sri.V.M.Sheelvant submits that the petitioner has now been remanded to custody by the Special Court before whom he was produced pursuant to the order of the learned Magistrate and therefore, his custody cannot be said to be illegal now. He also submits that the application under Section 167(2) of the Code has been W.P.10375/2021 7 filed by the petitioner before a court which did not have the jurisdiction and therefore, such an application cannot be considered. He submits that the offence punishable under Section 22(c) of the Act of 1985 has been invoked against the petitioner by the Police and for the purpose of completing the investigation for the said offence, statute provides 180 days and therefore, the petitioner is not entitled for a bail under Section 167(2) of the Code.
6. I have carefully considered the arguments addressed on both sides and also perused the material available on record.
7. The undisputed facts of the case are:
The petitioner was arrested on 01.04.2021 and 46 strips of LSD was seized from his person under a mahazar and the said seized substance totally weighed 0.89 grams. Petitioner was produced before the jurisdictional Magistrate on 02.04.2021 and on the same W.P.10375/2021 8 day, he was remanded to custody. The learned Magistrate thereafterwards continued to extend his remand periodically and on 7.6.2021, an application was filed on behalf of the petitioner under Section 167(2) of the Code claiming statutory bail.
8. The points that would arise for consideration in this petition would be;
(1) Whether the petitioner's custody can be termed to be an illegal detention for the reason that the jurisdictional Magistrate had remanded him to custody even after expiry of the first 15 days of custody?
(2) Whether the petitioner is entitled for statutory bail under Section 167(2) of the Code of Criminal Procedure, 1973?
9. A reading of Section 167(2)(a) of the Code and Section 36A(1)(b) of the Act of 1985 would make it clear W.P.10375/2021 9 that the jurisdictional Magistrate, if he is a Judicial Magistrate, he can remand the accused to custody for a period not exceeding 15 days and if he is a Executive Magistrate not exceeding 7 days. Therefore, the learned Magistrate in this case could not have remanded the petitioner to custody after the expiry of first 15 days. After expiry of the first 15 days, the learned Magistrate is bound to forward the case papers along with the accused to the Special Court and if the Special Court is not constituted, to the Court of Sessions having jurisdiction. In the case on hand, the learned Magistrate failed to forward the case papers and the accused to the Special Court and kept on remanding the petitioner even after completion of the first 15 days of remand. However subsequently after receiving the application under Section 167(2) of the Code, the learned Magistrate having realized that he had no jurisdiction either to remand the accused or to hold on to the file has forwarded the file to W.P.10375/2021 10 the jurisdictional Special Court along with the accused and the jurisdictional court has now remanded the petitioner to judicial custody.
10. The Hon'ble Supreme Court in the case of State
-vs- N.M.T.Joy Immaculate1 at para-13 has observed as follows:
"13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 Cr.P.C. confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. . . . . . . "1
2004 AIR SCW 2828 W.P.10375/2021 11
11. In the case of Anitha Mohan Waghmare -vs- IV Addl.Metropolitan Magistrate2, the Division Bench of the High Court of Andhra Pradesh, in identical circumstances has held at paras-11, 13 and 14 as follows:
"11. Sections 36A(1)(a)(b) and (c) reflect that a Special Court under the NDPS Act is not a Court for the first production of the accused for obtaining orders of judicial remand and that a Court of the learned Judicial Magistrate is a Court of first production for the purpose of authorising the detention of the person accused of commission of an offence in such custody as it thinks fit for a period not exceeding fifteen days in the whole. The Section of law itself provides that an accused, suspected of committing an offence under the NDPS Act would be forwarded by a Magistrate to the Special Court. Therefore, a contention that the learned Magistrate has no inherent jurisdiction or no jurisdiction at all to authorise detention in judicial custody on production of an accused before him cannot be countenanced. Section 36A of the NDPS Act which begins with the non-obstante clause. "Notwithstanding anything contained in the Code of Criminal Procedure, 1973...." indicates that the provision of the said Section would prevail over the provisions of the CrPC. In the event of any conflict between the provisions of 2 2016 SCC ONLINE HYD 335 W.P.10375/2021 12 CrPC and the provisions of Section 36A, the provisions of the said section under the NDPS Act would override the provisions of the CrPC.
13. The facts brought before us clearly indicate that the learned IV Metropolitan Magistrate had acted beyond his authority while passing the orders authorising detention of the petitioners husband in judicial custody for a period exceeding fifteen days. The act of the learned Magistrate in entertaining the further applications for remand and granting orders of extension of judicial remand exceeding fifteen days in the whole without forwarding the petitioners husband and his case papers to the Special Court is not proper though not illegal.......................... Therefore, the custody of the petitioners husband cannot be termed as illegal and it is only defective or in any event it is only irregular. And therefore merely because some default or irregularity is committed either in not physically forwarding the accused or the police papers pertaining to him to the Special Court, that by itself cannot be held to be sufficient to hold mechanically that the same confers a right on the accused to either seek a writ of habeas corpus and his release or seek bail invoking writ jurisdiction.
14. . . . . . . . . . . . . . . . . .
. . . . . . In our opinion the irregularity or defect in the order of the learned Judicial Magistrate extending remand and authorising detention of the petitioners husband, without the authority of law, beyond the period of fifteen days in the whole in judicial custody stand cured, on the special Court passing the subsequent orders of remand authorising the W.P.10375/2021 13 detention of the petitioners husband in judicial custody. Hence, the petitioner, whose husband was arrested on the accusation of commission of offence punishable under the NDPS Act, would not be entitled to seek a writ of habeas corpus or bail on the grounds that her husbands detention in judicial custody was either unauthorised or that it does not get validated or cured by the subsequent legal and valid orders passed by a special Court."
12. Even in the present case, the irregularity or defect in the order of learned Judicial Magistrate extending remand beyond first 15 days stand cured after the production of accused before the Special Court, who has thereafter passed an order of remand authorizing detention in judicial custody. Therefore, I hold that the custody of the petitioner cannot be termed as "illegal detention" and accordingly, I answer the point No.1 for consideration in the Negative.
13. The callous manner in which the accused are being remanded to judicial custody has resulted in the Magistrate remanding the petitioner to custody even after W.P.10375/2021 14 completion of the first fifteen days of remand. Therefore, the Magistrates, Public Prosecutors and the Investigating Officers are required to be more cautious and diligent whenever an accused is sought to be remanded to custody.
14. For the purpose of deciding the second point raised for consideration, it is necessary to take into consideration the quantity of substance seized from the person of the petitioner because the offence committed by him and the time for completion of the investigation and filing the charge sheet would depend upon the same. In the present case, the Investigating Officer has submitted a requisition to the learned Magistrate to certify the correctness of the inventory of the seized items and in exercise of the powers under Section 52A(2) of the Act of 1985, the said requisition has been allowed. A reading of the inventory order, which is available on record, would go to show that as per the PF submitted by the W.P.10375/2021 15 Koramangala Police in PF No.39/2021, 46 paper strips (different coloured LSD paper) weighing totally 0.89 grams have been seized from the person of the petitioner.
15. As per the Table annexed to the Act of 1985, a quantity exceeding 0.1 gram of LSD material is considered as commercial quantity, while a quantity upto 0.002 grams is considered to be a small quantity. The quantity of LSD seized in the present case is more than small quantity and less than commercial quantity and therefore it is required to be considered as inter-mediate quantity. If the quantity is considered to be inter- mediate, the offence that gets attracted against the petitioner would be one under Section 22(b) of the Act of 1985 and the maximum punishment for the said offence would be upto 10 years imprisonment.
W.P.10375/202116
16. The Hon'ble Supreme Court in the case of Rakesh Kumar Paul -vs- State of Assam3 in para-84.2 and 84.3 has observed as follows:
"84.2 Section167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (a) offences punishable with death and any lower sentence; (b) offences punishable with life imprisonment and any lower sentence; and (c) offences punishable with minimum sentence of 10 years.
84.3 In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of "default bail" after 60 days in case charge-sheet is not filed."
17. Therefore, the maximum punishment for the offence punishable under Section 22(b) of the Act of 1985 being ten years, Section 167(2)(a)(ii) of the Code will apply and in case if the investigation is not completed and 3 (2017) 15 SCC 67 W.P.10375/2021 17 charge sheet is not filed within the period of sixty days, then the accused will be entitled for a statutory bail.
18. The learned SPP has contended that since the application is filed before the court of Magistrate, who as on the date of filing the application, had no jurisdiction over the matter, the said application cannot be considered and after the petitioner was produced before the Special Court, he ought to have made an application before the said court which had jurisdiction.
19. The Hon'ble Supreme Court in the case of Bikramjit Singh -vs- State of Punjab4 has now held that a right under Section 167(2) of the Code for statutory bail is a fundamental right, which comes within the purview of Article 21 of the Constitution of India and the said right cannot be violated other than in accordance with law. It is also a settled principle that an application 4 (2020) 10 SCC 616 W.P.10375/2021 18 under Section 167(2) of the Code need not be in writing and there is no prescribed format for the said application and even if an oral request is made for release on bail once the right for statutory bail is accrued to the accused, the same is required to be considered, if the accused is ready to furnish bail. In the present case, the petitioner has made an application after expiry of sixty days from the date of his remand before the court in which his case was pending. Therefore, the petitioner has exercised his right that has accrued to him by default. It is not in dispute that even on this day, the prosecution has not completed the investigation and filed the charge sheet. Therefore, it becomes the bounden duty of this court to consider the prayer of the petitioner made under Section 167(2) of the Code, seeking statutory bail. The contention of the learned SPP that the application has been filed before the court of learned Magistrate, which had no jurisdiction to consider the same and petitioner is not W.P.10375/2021 19 entitled for relief under Section 167(2) of the Code, is therefore liable to be rejected. The Hon'ble Supreme Court in the case of M.Ravindran -vs- The Intelligence Officer, Directorate of Revenue Intelligence5 at para- 25.1 has held as under:
"25.1 Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have "availed of" or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), Cr.P.C. read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency."
20. The contention of the learned SPP that the offence invoked in the FIR is one under Section 22(c) of the Act of 1985 and therefore, the period for completion of 5 (2021) 2 SCC 485 W.P.10375/2021 20 investigation of the said offence is 180 days and not 60 days is also liable to be rejected for the reason that the certified inventory available on record would go to show that the total weight of the seized substance is only 0.89 grams, which amounts to inter-mediate quantity and therefore, the offence that could get attracted against the petitioner would be one under Section 22(b) and not under Section 22(c) of the Act of 1985. Merely for the reason that the Police have invoked a wrong provision of law, it cannot be said that the period for completion of investigation is 180 days and not 60 days. Since the quantity of narcotic substance seized from the person of the petitioner amounts to inter-mediate quantity, the offence that gets attracted against the petitioner being one under Section 22(b) of the Act of 1985, the period for completing the investigation would be sixty days. The period of 60 days from the date of remand expires on 01.06.2021. Since the charge sheet was not filed by then, W.P.10375/2021 21 on 7.6.2021 the petitioner has made an application under Section 167(2) of the Code before the court of learned Magistrate. The learned Magistrate has rejected the said application and therefore, the petitioner has approached this court challenging the said order. Even when the matter is being heard by this court, till date, the charge sheet has not been filed and therefore, I am of the considered opinion that the petitioner is entitled for statutory bail as provided under Section 167(2) of the Code and accordingly, I answer point No.2 for consideration in the affirmative.
21. Under the circumstances, the impugned order is quashed only insofar it relates to rejection of the prayer made by petitioner under Section 167(2) of the Code is concerned.
22. The Writ Petition is, accordingly, partly allowed. The petitioner's prayer for grant of statutory bail under W.P.10375/2021 22 Section 167(2) of the Code is allowed, subject to following conditions:
(1) The petitioner shall execute personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs) with two sureties for the likesum to the satisfaction of the trial court;
(2) The petitioner shall appear before the trial court on all hearing dates without fail unless his appearance is exempted by the said court for valid reasons;
(3) The petitioner shall not indulge in tampering the prosecution witnesses either directly or indirectly;
(4) The petitioner shall not indulge in any other similar offence in future;
(5) The petitioner shall not leave the jurisdiction of the trial court without prior W.P.10375/2021 23
permission of the said court till the case registered against him is disposed of;
(6) The petitioner shall appear before the Investigating Officer as and when called upon till the investigation is completed and charge sheet is filed.
Sd/-
JUDGE KNM/-