The Karnataka High Court partly allowed a writ petition, filed under Articles 226 and 227 of the Constitution of India, read with section 482 of Cr.P.C., praying to quash the order dated 20.05.2021 as per Annexure-F passed on the file of Respondent NCB as illegal and abuse of process of law. The Court observed that Police custody, on a remand application, can be made and granted for the first 15 days of arrest of the accused.
Brief Facts:
On receipt of certain information on 17-12-2020 at 3.00 p.m., the respondent/Narcotic Control Bureau of the Government of India seized 610 gms. of MDMA. After the said seizure, again on 18-12-2020 on suspicion arrested accused No.1. The suspicion leads to the petitioner, and the petitioner is also taken into custody on the same day. Both accused Nos. 1 and 2 were interrogated, their statements were recorded and on a remand application dated 19-12-2020 police custody was taken. After interrogation, the petitioner was by an order dated 23-12-2020 remanded to judicial custody.
The respondent filed another application seeking police custody of the petitioner for three days. The application comes to be allowed by the concerned Court granting police custody of the petitioner for three days and directing them to produce the petitioner back to Court. It is, therefore, the Police again got custody of the petitioner between 21-05-2021 and 23-05-2021. During this period the police recorded statements of the petitioner insofar as the link in the chain of events, to the acts of accused No.3. After the said recording of statement by another application on 24-05-2021, the petitioner was remanded back to judicial custody. During the trial, the statements that the petitioner made between 21-05-2021 and 23-05-2021 were sought to be pitted against him. It is immediately thereafter on 27-09-2021 the petitioner knocked at the doors of this Court in this petition calling in question the said custody that was taken between 21-05-2021 and 23-05-2021 and statements recorded thereon.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that Police custody of the petitioner could not have been granted after close to 6 months of his arrest and his being remanded to judicial custody. The Police can seek custody of an accused in the first fifteen days of his arrest and not thereafter, therefore the statements that are recorded on the second stint of Police custody are illegal, and the same should be eschewed, in their entirety.
Contentions of the Petitioner:
The Learned Counsel for the Respondent submitted that what has been done is only an interrogation with regard to the relationship between the petitioner and accused No.3. It is, therefore, to link with regard to the custody of funds, the statements are recorded and nothing beyond that.
Observations of the Court:
The Court observed that the second stint of Police custody for interrogation, in the same case, long after the accused was in judicial custody is unavailable. Police custody, on a remand application, can be made and granted for the first 15 days of the arrest of the accused. Once the accused is remanded to judicial custody, seeking Police custody repeatedly on the ground that a total of 15 days of custody is not yet over is a right that is unavailable to the prosecution.
Further, on the legality of evidence, the Court observed that the Court exercising jurisdiction under Section 482 of the Cr.P.C. or revision cannot eschew evidence even if it is evidence secured during illegal arrest or illegal custody of the accused. Therefore, the Court under Section 482 of the Cr.P.C. would not venture into declaring that the statement recorded during the second stint of Police custody be eschewed in its entirety which is akin to statements of an illegal act. No doubt it is illegal, but exercising jurisdiction to hold it as illegal and completely eschewing it, is not the power that is available at the hands of this Court.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the Police custody of the petitioner between 21-05-2021 and 23-05-2021 – the second stint is declared illegal.
Case Title: Emmanuel Michael vs UOI
Coram: Hon’ble Justice M. Nagaprasanna
Case no.: WRIT PETITION No.17961 OF 2021 (GM-RES)
Advocate for the Petitioner: Mr. Hashmath Pasha
Advocate for the Respondents: Mr. Narasimhan S
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