Allowed

Manikandan v. Inspector of Police

Madras HC27 Mar 2023CRL RC/299/2023

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision to set aside the trial court's dismissal of a statutory bail application. The petitioner, charged under the NDPS Act, was denied bail because an extension petition was pending. The Court held that since the final report was not filed within 180 days, the petitioner is entitled to mandatory bail under Section 167(2) Cr.P.C.

What did the court decide?

The order of the trial court was set aside and the petitioner was enlarged on statutory bail upon execution of a bond with two sureties of Rs.25,000 each.

Manikandan Vs Inspector of Police — Narcotics (NDPS) | Madras HC (2023)

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Crl.R.C.No.299 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 27.03.2023

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CORAM

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THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM

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Crl.R.C.No.299 of 2023

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Manikandan ... Petitioner

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Vs.

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The State of Tamil Nadu, Rep by the Inspector of Police, N-1, Royapuram Police Station, Chennai

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... Respondent

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Criminal Revision filed under Section 397 r/w 401 of Cr.P.C., to set aside the order passed in Crl.M.P.No.3335 of 2022, dated 10.08.2022 on the file of the Principal Special Court for NDPS Act Cases at Chennai and enlarge the petitioner on mandatory bail under Section 167(2) Cr.P.C in Crime No.37 of 2022, pending on the file of the respondent police.

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For Petitioner : Mr.M.S.Ramesh

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For Respondent : Mr.R.Vinothraja, GA, (crl.side)

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O R D E R

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This criminal revision has been filed challenging the order passed in

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Crl.M.P.No.3335 of 2022, dated 10.08.2022 by the learned Principal

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Special Judge for NDPS Act, Chennai, in and by which, the learned

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Principal Special Judge has dismissed the bail application filed by the petitioners under section 167(2) Cr.P.C r/w 36(A) of NDPS Act.

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2.The Learned Counsel for the petitioner contended that the petitioner is the 3^rd accused and the respondent police registered the case against this petitioner along with other persons in Crime No.37 of 2022 for offences under Sections 8 (c) r/w 20(b)(ii)(c) and 29(1) of NDPS Act and he was arrested and remanded to judicial custody from 14.01.2022. The allegation is that the contraband of 160 kgs of Ganja has been seized from the accused. As mandated under Section 167(2) of Cr.P.C, the limitation period for filing final report is within 180 days, so far, no final report has been filed before the statutory period. Hence, the petitioner is entitled for statutory bail. Therefore, the petitioner filed an application before the trial Court in Crl.M.P.No.3335 of 2022, which was dismissed on the ground that the respondent police filed an application on 08.07.2022 i.e.,176^th day, before completion of 180 days, under Section 36A(4) of NDPS Act, for extension of time for filing final report. The extension petition was permitted by this Court on the same day. Therefore, the trial Court ordered extension of time only on 11.08.2022. Therefore, the observation made by

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the Court in the dismissal order is unsustainable. Hence, this petition has been filed seeking to set aside the impugned order passed by the trial Court and to enlarge the petitioner on bail under Section 167 (2) of Cr.P.C.

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3.The Learned Government Advocate (Crl.Side) for the respondent submitted that the petitioner was arrested by the respondent police in Crime No.37 of 2022 for offences under Sections 8 (c) r/w 20(b)(ii)(c) and 29(1) of NDPS Act. Further, he submitted that within the statutory period of 180 days, the respondent police has not filed the final report, but he filed an application under Section 36A(4) of NDPS Act, on 08.07.2022 before the completion of 180 days. Though the trial Court in the impugned order mentioned that the extension of time was ordered on the same day itself, but the order was passed only on 11.08.2022.

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4.Heard the Learned Counsel for the petitioner and the Learned Government Advocate (Crl.Side) for the respondent. Perused the records.

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5.On perusal of records, the fact reveals that the petitioner is the 3^rd accused in Crime No.37 of 2022. The respondent police registered a case

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against the petitioner for the offences under Sections 8(c) r/w 20(b)(ii)(c) and 29(1) of the NDPS Act and seized the contraband of 160 kgs ganja, from the accused persons on 14.01.2022 and thereafter, they arrested and remanded the accused to judicial custody on 14.01.2022. Further, on perusal of the records, it is noticed that the statutory bail application was dismissed on 10.08.2022 in Crl.M.P.No.3335 of 2022. The extension of time application in Crl.M.P.No.3306 of 2022 was granted on 11.08.2022, i.e, on the next day of dismissal of statutory bail application. This Court, vide order dated 06.03.2023, called for an explanation from the learned Special Judge, Principal Special Court under EC & NDPS Act, Chennai, since in the impugned order, it is recorded that the extension of time application was granted on the same day itself, i.e. 10.08.2022. In this regard, the learned Judge has submitted his remarks, vide proceedings dated 20.03.2023 in Dis.No.1877/2023, wherein, it has been stated as follows:-

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“Though two Crl.M.P.No.3335/2022 u/s.167 Cr.P.C. and Crl.M.P.No.3306/2022 u/s.36(A) NDPS Act were taken into consideration on the very same day and had instructed my steno to allow 36(A) NDPS Act petition and dismiss 167(2) Cr.P.C. simultaneous manner. Without

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knowing the significant, my steno had typed the 167 Cr.P.C as not maintainable on 10.08.2022 and on 11.08.2022, the 36(A) NDPS Act petition in Crl.M.P.No.3306/2022 was allowed. So as on date on 10.08.2022, there is no such order in 36(A) petition. Hence, order as such passed in 167 Cr.P.C on 10.08.2022 without pronouncing order in 36A petition as not maintainable is a pure error done by this court. I have not done wantonly. I tender my apology. Due to pressure of work, this mistake had occurred.”

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6.From the above remarks, it is clear that though the learned Principal Special Judge, Special Court under EC and NDPS Act, Chennai has stated that on the same day, i.e, 10.08.2022, he disposed both applications, i.e. Crl.M.P.No.3335 of 2022 and Crl.M.P.No.3306 of 2022, but the records would not support the averments stated in the impugned order. It is also admitted that extension of time application was allowed on 11.08.2022.

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7.In view of Section 167(2) of Cr.P.C., final report has to be filed

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within 180 days. Since the respondent police has not filed the final report within 180 days, the petitioner filed an application under Section 167(2) of Cr.P.C, r/w 36(A) of NDPS Act, in Crl.M.P.No.3335 of 2022 for statutory https://www.mhc.tn.gov.in/judis 5/9

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bail and the same was dismissed as not maintainable by the trial Court on 10.08.2022 by giving a reason that the respondent police filed a petition in Crl.M.P.No.3306 of 2022 under Section 36A(4) of NDPS Act seeking further extension of time for completion of investigation is ordered. Therefore, the observation made by the trial Court in Crl.M.P.No.3335 of 2022 is incorrect and the petitioner is entitled for statutory bail.

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8.In view of the dictum laid down by the Constitution Bench of our Honourable Supreme Court in the case of Sanjay Dutt Vs. State Through B.I, Bombay (II) (1994(5) SCC page 410) , which has been re~affirmed by subsequent judgment of the Supreme Court in State of Madhya Pradesh Vs. Rustam, reported in 1995 SCC Crl.830 , if an accused filed an application for statutory bail, on the expiry of the period contemplated under the proviso to Sub Section (2) of Section 167 Cr.P.C., and offering him to release him on bail, no final report had been filed by the respondent police, then the accused has to be released on bail and the right conferred upon him under the aforesaid provision of Cr.P.C., must be enforced. Merely dismissing such application on the ground of receiving petition for extension of time and kept the same pending without passing any order on

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that application would frustrate the right of the accused. Therefore, in view

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of the above discussions, the order of the trial court is unsustainable and the same is liable to be set aside.

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9.Accordingly, the Criminal Revision Case is allowed and the petitioner/accused is enlarged on statutory bail on the following conditions,

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(i) The petitioner shall execute a bond for a sum of Rs.25,000/~ (Rupees Twenty five thousand only) along with two sureties, each for a likesum to the satisfaction of the Principal Special Court under EC & NDPS Act, Chennai.

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(ii) The petitioner and the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the trial Court may obtain a copy of their Aadhaar card or Bank pass Book to ensure their identity; and

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(iii) The petitioner shall appear before the trial Court as and when required.

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27.03.2023

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srn

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Index:Yes/No Internet:Yes/No

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