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2021 DIGILAW 12 (MAN)

Md. Salim v. The State of Manipur

2021-03-23

M.V.MURALIDARAN

body2021
ORDER 1. I heard Mr. Th. Babloo, learned counsel for the petitioner and Mr. Y. Ashang, learned PP for the respondents. 2. The petitioner has challenged the order passed by the learned Special Court (ND&PS), Manipur in FIR No. 94(11)2019 HNG P.S. U/s 21 (b) ND&PS Act dated 19.09.2020. 3. According to the petitioner, he was arrested on 12.11.2019 by the Heikrumakhong Police Station for the allegation that the petitioner carried contraband drugs and remanded into police custody till 15.11.20219 by the Court and then to judicial custody. Since then he is in jail on the charge of carrying contraband drugs. 4. It is the further case of the petitioner that after completion of 180 days no charge sheet has been filed by the respondent police and hence, the learned Special Court (ND&PS), Manipur has passed the present impugned default bail order dated 19.09.2020 under Section 167(2) Cr.P.C. and the Learned Special Judge was pleased to release him on bail subject to his furnishing of a P.R. Bond of Rs. 2,00,000/- with two sureties of like amount. It has been further directed by the Court that the petitioner shall also deposit a sum of Rs. 1,00,000/- which will be refunded after conclusion of trial. 5. Being aggrieved by the said order of the Learned Special Court (ND&PS), Manipur this instant petition has been filed by the petitioner on the inter alia ground that the petitioner is a poor person and the conditions imposed by the learned Special Court (ND&PS), Manipur amounts to denial of bail itself that the insistence of deposit of Rs. 1,00,000/- not only harsh but oppressive that Section 441 of the Cr.P.C. does not contemplate a power of demanding of cash security by the learned Special Court (ND&PS), Manipur for the release of the petitioner on bail under Section 167(2) of the Cr.P.C. is rendered a virtual denial and that imposition of conditions which the petitioner being a poor man cannot fulfil his violative of Article 21 of the Constitution of India. 6. No counter affidavit has been filed by the respondents but Mr. Y. Ashang, learned PP for the respondents made oral submissions by representing that the learned Special Court (ND&PS), Manipur has passed rightly by following the orders of the Hon'ble Supreme Court in Union of India Vs. Thamisharasi & Ors. reported in (1995) 4 SCC 190 . 7. Mr. 6. No counter affidavit has been filed by the respondents but Mr. Y. Ashang, learned PP for the respondents made oral submissions by representing that the learned Special Court (ND&PS), Manipur has passed rightly by following the orders of the Hon'ble Supreme Court in Union of India Vs. Thamisharasi & Ors. reported in (1995) 4 SCC 190 . 7. Mr. Babloo, learned counsel for the petitioner represented that the issue involved herein is already been decided by the Hon'ble Supreme Court on 15.10.2020 in Saravanan Vs. State represented by the Inspector of Police, Criminal Appeal No. 681-682 of 2020 and based on that orders, this Hon'ble Court passed judgment and orders in (i) Cril. Petn. No. 28 of 2020, Jangpao Haokip Vs. The State of Manipur & Anr. dated 21.12.2020 and (ii) Criminal Revision Petition No. 2020, Mr. Jamkhomang Baite Vs. The State of Manipur dated 28.01.2021. 8. Hence, the said decisions rendered by the Hon'ble Supreme Court and by this Court is squarely applicable to the petitioner's case also. Therefore, he prayed this Court to allow the criminal petition as prayed in this petition. 9. This Court heard both the parties and also perused the documents and the citations produced by both the parties. 10. On the expiry of the statutory period, the learned Special Court (ND&PS), Manipur by in its order dated 19.09.2020 under Section 167(2) Cr.P.C. releasing the petitioner on default bail/statutory bail, the learned Special Court (ND&PS), Manipur vide its order dated 19.09.2020 was pleased to release the petitioner on bail but unfortunately, by releasing him on bail, the learned Special Court (ND&PS), Manipur had imposed certain conditions vide its order dated 19.09.2020 and the relevant portion reads as under :- "Accused Md. Salim interacted through V.C. He was first remanded to police custody on 13.11.2019 and subsequently to judicial custody on 15.11.2019. He has been languishing in jail since then. Quantity involved is intermediate. Accused is granted bail u/s 167(2) Cr.P.C.. subject to his furnishing a P.R. Bond of Rs. 2,00,000/- with two sureties of like amount. He shall also deposit a sum of Rs. 1,00,000/- which will be refunded after conclusion of trial. Remanded till 03.10.2020." 11. He has been languishing in jail since then. Quantity involved is intermediate. Accused is granted bail u/s 167(2) Cr.P.C.. subject to his furnishing a P.R. Bond of Rs. 2,00,000/- with two sureties of like amount. He shall also deposit a sum of Rs. 1,00,000/- which will be refunded after conclusion of trial. Remanded till 03.10.2020." 11. Being aggrieved by the said order dated 19.09.2020 passed by the learned Special Court (ND&PS), Manipur in respect of direction to deposit a sum of Rs.1,00,000/- in to the Court, this instant criminal petition has been filed by the petitioner. 12. During the course of hearing, it has been submitted by the learned counsel appearing for the petitioner that the issue involved herein has already been decided by the Hon'ble Supreme Court and this Court and in terms thereof, the instant criminal petition can be allowed for modifying the order dated 19.09.2020 passed by the learned Special Court (ND&PS), Manipur. 13. Admittedly, the facts in (i) Cril. Petn. No. 28 of 2020, Jangpao Haokip Vs. The State of Manipur & Anr. dated 21.12.2020 and (ii) Criminal Revision Petition No. 2020, Mr. Jamkhomang Baite Vs. The State of Manipur dated 28.01.2021 are similar to that of the present case this Court vide its judgment and order dated 21.12.2020 and 28.01.2020 held that when the default bail/statutory bail is granted no condition can be imposed by the Court in view of the law laid down by the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Saravanan Vs. State represented by the Inspector of Police, Criminal Appeal No. 681-682 of 2020 held as follows :- "9. Having heard the learned counsel for the respective parties and considering the scheme and the object and purpose of default bail/statutory bail, we are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs.8,00,000/-while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such condition taking into a consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/-. It appears that the High Court has imposed such condition taking into a consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/-. However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul (supra), where the investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60th or 90th day, accused gets an "indefeasible right" to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/ statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C. As observed by this Court in the case of Rakesh Kumar Paul (supra) and in other decisions, the accused is entitled to default bail/statutory bail, subject to the eventuality occurring in Section 167, Cr.P.C., namely, investigation is not completed within 60 days or 90 days as the case may be, and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail." 14. While allowing the bail, the Hon'ble Supreme Court directed that the police shall cooperate with the Investigating Agency and shall report the concerned police station as and when called for investigation/interrogation and non-cooperation the consequences including cancellation of the bail shall follow. 15. The Hon'ble Supreme Court has decided only the issue relating to the releasing of the accused on default bail/statutory bail under Section 167(2) Cr.P.C. irrespective of the nature of the offences alleged to have been committed by the accused. 15. The Hon'ble Supreme Court has decided only the issue relating to the releasing of the accused on default bail/statutory bail under Section 167(2) Cr.P.C. irrespective of the nature of the offences alleged to have been committed by the accused. In other words, the provision of Section 167(2) Cr.P.C. have been construed to mean that no other conditions of deposit of alleged amount can be imposed. Hence, the decision rendered by the Hon'ble Supreme Court in Thamisharasi (supra) does not help the learned PP appearing for the respondents at all. Rather, it has helped the case of the petitioner. 16. Considering all these facts and the decisions rendered by the Hon'ble Supreme Court in Saravanan Vs. State represented by the Inspector of Police, Criminal Appeal No. 681-682 of 2020 and this Court in (i) Cril.Petn.No.28 of 2020, Jangpao Haokip Vs. The State of Manipur & Anr. dated 21.12.2020 and (ii) Criminal Revision Petition No. 2020, Mr. Jamkhomang Baite Vs. The State of Manipur dated 28.01.2021 this issue in this criminal petition is entirely covered and it can be safely held that the provisions of Section 167(2) Cr.P.C. would apply to the accused arrested under the provision of the NDPS Act. Therefore, the impugned order dated 19.09.2020 passed by the learned Special Court (ND&PS), Manipur is partly quashed and set aside except the portion to the extent that the petitioner is granted bail with the following directions :- (a) The petitioner shall be released on default bail provided he is ready to furnish PR bond to the satisfaction of the Special Judge, ND & PS, Manipur; (b) The petitioner shall co-operate with the investigating agency and shall report the concerned police station as and when called for investigation/ interrogation; (c) On non-cooperation, the consequences including cancellation of the bail shall follow, for which it is open to the police to move appropriate application before the Special Court, ND & PS, Manipur; (d) The petitioner shall not leave the State of Manipur without the leave of this Court. [17] Registry is directed to issue copy of this order to both the parties.