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2022 DIGILAW 508 (TS)

Kampati Phani Kumar v. Union of India

2022-08-02

CHILLAKUR SUMALATHA

body2022
ORDER : 1. Heard the submission of Sri V. Gopalakrishna Gokhley, learned counsel for the petitioner/Accused No. 5 and also Sri B. Narasimha Sarma, learned Special Public Prosecutor for Narcotic Bureau. 2. Seeking to quash the order that is rendered by the Court of Metropolitan Sessions Judge-cum-Special Judge for NDPS Cases, Medchal-Malkajgiri District, in Crl. M.P. No. 1673 of 2022 in Crime NCB F. No. 48/1/10/2021/NCB/SUB-ZONE/HYD, dated 12.07.2022, the present Criminal Petition is filed. 3. The petitioner, who is arrayed as Accused No. 5 moved an application for grant of bail under Section 439 Cr.P.C. r/w. Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”) r/w. Section 167(2) Cr.P.C. The trial Court, through order in Crl. M.P. No. 1673 of 2022 in Crime NCB F. No. 48/1/10/2021/ NCB/SUB-ZONE/HYD, dated 12.07.2022, dismissed the said application. Aggrieved by the same, the petitioner approached this Court seeking to quash the said order. 4. Learned counsel for the petitioner/Accused No. 5 submits that the petitioner was remanded to Judicial custody and he was in Judicial custody pending investigation and the respondent failed to file charge sheet within the statutory period of 180 days as required under Section 37 of the NDPS Act and, therefore, he moved an application for grant of statutory bail, but the trial Court has dismissed the said application and as the order rendered by the trial Court is ex-facie illegal, the petitioner filed the present Criminal Petition for quashment of the said order. 5. Learned counsel for the petitioner also states that the Investigating Agency is under obligation to complete investigation and submit Final Report time-bound and it is mandate of law and Section 167 Cr.P.C. lays down that in case investigation is not completed within the stipulated time, an indefeasible right accrues to the petitioner/Accused No. 5 to move an application before the competent Court to release him on bail and the same is done by the petitioner herein, but the trial Court, without entertaining the said request, has dismissed the said application. Learned counsel also states that even if the Accused fails to submit before the Court that the statutory period is completed, yet, in case charge sheet is not filed, it is the duty of the trial Court to verify and release the Accused on bail. Learned counsel also states that even if the Accused fails to submit before the Court that the statutory period is completed, yet, in case charge sheet is not filed, it is the duty of the trial Court to verify and release the Accused on bail. But, in the case on hand, even though an application was moved to that effect, the trial Court dishonoured the request, which is highly unjustifiable. Learned counsel further submits that not only under Section 167 Cr.P.C. the Accused would get a right for being enlarged on bail, but such right accrues even under Article 21 of the Constitution of India. 6. In this regard, learned counsel for the petitioner relied upon a decision of the Hon’ble Apex Court in a case between Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67 wherein, the Hon’ble Apex Court at paras-37 to 40 of the said order observed as follows: “37. This Court had occasion to review the entire case law on the subject in Union of India vs. Nirala Yadav, (2014) 9 SCC 457 . In that decision, reference was made to Uday Mohanlal Acharya vs. State of Maharashtra, (2001) 5 SCC 453 and the conclusions arrived at in that decision. We are concerned with conclusion No. 3 which reads as follows: “(3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. 38. This Court also dealt with the decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for ‘default bail’ has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. 38. This Court also dealt with the decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for ‘default bail’ has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond. 39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohamed Iqbal Madar Sheikh vs. State of Maharashtra, (1996) SCC 722 wherein it was observed that some courts keep the application for ‘default bail’ pending for some days so that in the meantime a charge sheet is submitted. While such a practice both on the part of prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for ‘default bail’ during the interregnum when the statutory period for filing the charge sheet or challan expires and the submission of the charge sheet or challan in court. Procedure for obtaining default bail 40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court - he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.” 7. Thus, by the above decision, the Hon’ble Apex Court held that indefeasible right of the Accused to be released on bail accrues on expiry of the statutory period and the Accused shall be enlarged on bail, in case he is ready and willing to furnish solvency to the satisfaction of the Magistrate concerned. 8. On the same subject matter, learned counsel also relied upon a decision of the Hon’ble Apex Court in a case between Achpal and Others vs. State of Rajasthan, (2019) 14 SCC 599 wherein the Hon’ble Apex Court at Paras-16 to 18 of the said judgment observed as follows: “16. The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if “it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57” the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not. Sub-Section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail. 17. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation. 18. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be remanded to further custody. 18. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. In our considered view the accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour.” 9. Section 167 Cr.P.C. clearly envisages that it is the duty of the police to investigate the case and complete the investigation as soon as possible, and in case, investigation cannot be completed within 24-00 hours and that there are grounds for believing that the accusation or information is well founded, the concerned Officer has to transmit to the nearest Judicial Magistrate a of copy of the entries in the diary prescribed, relating to the case and shall at the same time forward the accused to such Magistrate. 10. The relevant provisions as far as the present case are concerned are Section 167(1) and (2) Cr.P.C. which reads as under: “167. Procedure when investigation cannot be completed in twenty four hours. (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that: (a) the Magistrate may authorise 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 authorise the detention of the accused person in custody under this paragraph for a total period exceeding: (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life 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. (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him. (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II - If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. 11. Explanation II - If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. 11. Coming to the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, as per Section 36-A(4) of the Act, where offence is punishable under Section 19 or 24 or 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.” 12. Therefore, it is incumbent on the part of the Investigating Agency, who investigate the offence under NDPS Act, more particularly the offence punishable under the provisions mentioned under Section 36-A (4) of the NDPS Act to complete the investigation and submit Final Report within a period of 180 days. 13. In the case on hand, the submission of learned counsel for the petitioner is that no charge sheet has been submitted as on the date of hearing. Basing on the said fact, learned counsel for the petitioner states that the petitioner is entitled to the statutory bail. 14. Vehemently opposing the submission made by learned counsel for the petitioner, the learned Special Public Prosecutor submitted that the bail application was moved on 10.06.2022 and by the said date, the charge sheet was filed before the Court concerned. The learned Special Public Prosecutor also states that the charge sheet was returned on 23.06.2022 and it was resubmitted on 06.07.2022. The learned Special Public Prosecutor further submits that on completion of investigation, charge sheet was filed within the prescribed time, however, due to formation of new Judicial Districts in the State of Telangana, consequent restructure in respect of the jurisdiction, the jurisdiction for trial of offences under NDPS Act was shifted to another Court, and hence, the Court concerned, before which the charge sheet was filed, returned the charge sheet for presentation before the competent Court and the charge sheet was accordingly presented before the competent Court. 15. 15. Intercepting the said submission, learned counsel for the petitioner contended that the Prosecuting Agency has not resubmitted the charge sheet within the time stipulated and that as on the date of hearing of the bail application, no charge sheet was on the file of the said Court. 16. Therefore, in the light of the submissions made, it has to be seen whether filing of Final Report has to be taken into consideration or whether the presence of the Final Report before the Court concerned as on the date of hearing of the bail application has to be taken into consideration. In the considered opinion of this Court, as per the mandate of law, more particularly Section 167(2) Crl. P.C. and also Section 36-A(4) Cr.P.C. the date of presentation of the charge sheet has to be taken into consideration, and if the said charge sheet is filed within a period of sixty (60) days/ninety (90) days or One hundred and eighty (180), as the case may be, then it has to be held that the Final Report is filed within the stipulated time. Such being the case, the Accused will not get any right for filing an application for statutory bail. The position however would have been differed in case the Prosecuting Agency has complied the mandatory requirement as an empty formality and that the charge sheet is filed without any supporting documents or that without completion of investigation. 17. Though learned counsel for the petitioner time and again projected that Article 21 of the Constitution of India is divided, this Court does not find any such defeat of the said salutary provision, Article 21 of the Constitution of India says that no person shall be deprived of his life or personal liberty, except according to the procedure established by law. In the case on hand, this Court does not find any ground or circumstance where life or personal liberty of the petitioner is defeated. Further-more, when the competent Court has well discussed and passed a reasoned order, it is not desirable on the part of the petitioner to approach this Court by filing application under Section 482 Cr.P.C. seeking the Court to quash the said order. Further-more, when the competent Court has well discussed and passed a reasoned order, it is not desirable on the part of the petitioner to approach this Court by filing application under Section 482 Cr.P.C. seeking the Court to quash the said order. That apart, the learned Special Public Prosecutor has brought to the notice of this Court that the petitioner had earlier moved another Criminal Petition vide No. 8264 of 2021 for grant of bail and that the said application stood dismissed by the Court. But, it was suppressed by the petitioner herein. Keeping those things aside, as this Court does not find any illegality or irregularity in passing the impugned order, this Court holds that the present Criminal Petition cannot be entertained. 18. Resultantly, this Criminal Petition is dismissed. 19. As a sequel, miscellaneous petitions pending, if any, shall stand closed.