Kerala High Court
Sameeer vs State Of Kerala on 8 September, 2021
[C.R]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
BAIL APPL. NO. 5747 OF 2021
CRIME NO.91/2021 OF Ernakulam Central Police Station, Ernakulam
AGAINST THE ORDER IN CRMC 1139/2021 OF I ADDITIONAL DISTRICT COURT,
ERNAKULAM,
PETITIONER:
SAMEEER
AGED 31 YEARS
S/O.ABDUL RASSAK, NABEESATH VILLA, PADANNA P.O.,
VADAKKEPURAM, PADANNA VILLAGE, KASARGODE DISTRICT.
BY ADV ANITHA MATHAI MUTHIRENTHY
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
SRI.GRASHIOUS KURIAKOSE, ADGP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON 8.9.2021, DELIVERED THE FOLLOWING:
B.A.No.5747 of 2021 2
[C.R]
P.V.KUNHIKRISHNAN, J
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B.A.No.5747 of 2021
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Dated this the 8th day of September, 2021
ORDER
A short point, ofcourse an interesting point, is raised by Advocate
Smt.Anitha Mathai Muthirenthy, the counsel for the petitioner in this
bail application. According to the counsel, the petitioner is entitled to
statutory bail u/s. 167(2) of the Criminal Procedure Code (for short
Cr.P.C) because no complete final report is filed before the court
concerned, even after 180 days from the date of detention of the
petitioner.
2. The facts are like this:
The petitioner is the 1st accused in Crime No.91 of 2021 of
Central Police Station, Ernakulam. The offences alleged against the
petitioner are u/s.20(b)(ii)(C), 22(C), and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short NDPS Act). The
prosecution case is that the petitioner was residing in an apartment
on the 2nd floor of Njarakkattu Residency in Kunnappally Lane in
Nettipadam Road, Ernakulam. On 30.1.2021, the police got
information that the selling of narcotic drugs is going on in the above
apartment. The information was recorded in the C.D by the officer
concerned and proceeded to the place after complying with other
formalities. When the police party reached the apartment, the 1st
accused opened the door. It was found that the 2 nd and 3rd accused
were also present in the apartment. After performing the legal
formalities, the body of the petitioner and the other accused were
searched. The apartment was also searched. It is the prosecution
case that 44.56 gms of MDMA, 1286.51 gms of Hashish oil, and 340
gms of Ganja were seized. It is also the case of the prosecution that
the 2nd accused was found in possession of 1.93 gms of Hashish oil
and the 3rd accused was found in possession of 1.88 gms of Hashish
oil. Hence, it is alleged that the accused committed the offence. It is
the admitted case of the prosecution and the accused that the final
report is filed before the jurisdictional court without the analyst report
of the contraband articles seized. It is also an admitted fact that the
statutory period of 180 days for completing the investigation is also
over. The petitioner was arrested on 30.1.2021 and he was produced
before the court concerned on 31.1. 2021. Admittedly, the final report
without the analyst report was submitted before the court concerned
within 180 days. It is also an admitted case that the Hashish oil and
the MDMA seized from the possession of the accused are commercial
quantities as per the NDPS Act. According to the petitioner, he is
entitled to default bail because an incomplete charge sheet is
submitted.
3. Heard the counsel for the petitioner Advocate Smt.Anitha
Mathai Muthirenthy and the Additional Director General of Prosecution
Sri.Gracious Kuriakose.
4. The counsel for the petitioner raised several contentions. The
counsel submitted that there was no seizure from the body of the
petitioner. The counsel submitted that simply because some
contraband articles are seized from the apartment in which the
petitioner was found, the petitioner is not responsible for the same.
The counsel also submitted that there is no criminal antecedents to
the petitioner. It is also the case of the petitioner that there is no
conscious possession of the contraband article seized from the
apartment as far as the petitioner is concerned. It is also contended
by the counsel that the prosecution submitted a final report without
an analyst report. According to the petitioner, in NDPS cases, without
analyst report, the prosecution cannot succeed. The counsel
submitted that the final report submitted by the investigating officer is
without the analyst report and therefore, it is an incomplete final
report. The counsel submitted that the incomplete final report is filed
to defeat the right of the petitioner to get bail u/s.167(2) Cr.P.C.
Therefore, the counsel submitted that the petitioner is entitled bail
because there is an incomplete final report filed before the court just
to get over the provision under Section 167(2) Cr.P.C. Hence, the
counsel submitted that the petitioner is entitled to default bail. The
counsel also relied on the judgment of the apex court in Rakesh
Kumar Paul v State of Assam (2017 (4) KHC 470) and the
judgment of the apex court in Om Prakash @ Baba v State of
Rajasthan (2009 KHC 5198). The counsel also relied an unreported
judgment of this court dated 12.8.2021 in B.A.No.4910 of 2021.
Another decision relied is the judgment of the Karnataka High Court in
Inspector of Customs, Headquarters Preventive Unit,
Bangalore v Daphira Wallang (2010 KHC 7257).
5. The Additional Director General of Prosecution (for short the
ADGP) opposed the bail application. The ADGP submitted that the
petitioner took the apartment on rent and the contraband articles
were seized from the apartment. The ADGP also submitted that
commercial quantities of Hashish oil and MDMA are seized from the
apartment. It is also submitted that a weighing machine and packets
to pack the contraband articles were also seized from the apartment.
Therefore, the petitioner is primarily responsible for the same and the
petitioner was in conscious possession of the contraband article. The
ADGP also submitted that the petitioner is a resident of Kasaragod
and he came to Ernakulam for the illegal NDPS business. Therefore,
the ADGP submitted that there is ample evidence against the
petitioner. The ADGP conceded that the analyst report is not
submitted along with the final report. But the ADGP submitted that
Hashish oil can be identified by an expert even by sight. The ADGP
submitted that the detecting officer identified with the help of the
Excise Inspector present at the spot that the contraband is Hashish oil
and MDMA. The purpose of the analyst report is only to corroborate
the evidence of these witnesses. The investigating officer has already
taken steps to send the sample for expert opinion. In such
circumstances, simply because the analyst report is not received and
before receiving the same the final report is filed, the petitioner is not
entitled statutory bail u/s.167(2) Cr.P.C. The ADGP also submitted
that a commercial quantity of Hashish oil and MDMA is seized from
the apartment. There are only four labs in Kerala to analyse these
contraband articles. Because of the workload in these laboratories,
the analyst report is not obtained. It is also submitted that because of
the pandemic situation, there was no sufficient staff in the
laboratories and therefore, the lab authorities were not able to
complete the analysis in time. The definite case of the ADGP is that
the petitioner cannot take advantage of the above situation. The
ADGP submitted that, since commercial quantities of MDMA and
Hashish oil are seized from the petitioner, the petitioner may not be
released on bail at this stage.
6. I considered the contentions of the petitioner and the ADGP.
The first contention of the petitioner is that he is not responsible for
the seizure of the contraband article from the apartment and there is
no contraband seized from the physical possession of the petitioner.
This can not be accepted while considering this bail application. The
prosecution case is that the petitioner took this apartment for rent.
When the detecting officers searched the apartment, the petitioner
was present. According to the detecting officers, commercial
quantities of MDMA and Hashish oil are seized from the apartment
which is taken on rent by the petitioner. In such circumstances,
simply because there is no seizure from the body of the petitioner, he
cannot escape from the liability at this stage. The burden is on the
petitioner to establish that he was not in conscious possession of the
contraband articles. While considering a bail application u/s.439
Cr.P.C, this court cannot decide the same. The petitioner is free to
raise all those contentions at the stage of trial and I do not want to
make any further observation about the same at this stage.
7. The main contention of the petitioner is that the petitioner is
entitled statutory bail because there is no complete final report filed
before the court concerned within the statutory period prescribed
u/s.36A(4) of the NDPS Act. It is an admitted fact that the final report
is filed. It is also an admitted fact that the final report is filed without
the analyst report and even now it is not received. It is also an
admitted fact that the statutory period for completing the
investigation is over as of today. In such circumstances, whether the
petitioner is entitled to default bail u/s.167(2) Cr.P.C is the point to
be decided. For deciding this issue, it will be better to extract Section
167 Cr.P.C.
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 not 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 of the
accused in custody of the police under this section
unless the accused is produced before him in person
for the first time and subsequently every time till the
accused remains in the custody of the police, but the
Magistrate may extend further detention in judicial
custody on production of the accused either in
person or through the medium of electronic video
linkage.
(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 clause (b),
the production of the accused person may be proved by his
signature on the order authorising detention or by the order
certified by the Magistrate as to production of the accused person
through the medium of electronic video linkage, as the case may
be;
Provided further that in case of woman under eighteen years of
age, the detention shall be authorised to be in the custody of a
remand home or recognized social institution.
(2A) Notwithstanding anything contained in sub- section (1) or
sub- section (2), the officer in charge of the police station or the
police officer making the investigation, if he is not below the rank
of a sub- inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate, on whom
the powers of a Judicial Magistrate or Metropolitan Magistrate
have been conferred, a copy of the entry in the diary hereinafter
prescribed relating to the case, and shall, at the same time,
forward the accused to such Executive Magistrate, and thereupon
such Executive Magistrate, may, for reasons to be recorded in
writing, authorise the detention of the accused person in such
custody as he may think fit for a term not exceeding seven days
in the aggregate; and, on the expiry of the period of detention so
authorised, the accused person shall be released on bail except
where an order for further detention of the accused person has
been made by a Magistrate competent to make such order; and,
where an order for such further detention is made, the period
during which the accused person was detained in custody under
the orders made by an Executive Magistrate under this sub-
section, shall be taken into account in computing the period
specified in paragraph (a) of the proviso to sub-section(2);
Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the
entries in the diary relating to the case which was transmitted
to him by the officer in charge of the police station or the police
officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the
custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate
making such order shall forward a copy of his order, with his
reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case,
the investigation is not concluded within a period of six months
from the date on which the accused was arrested, the
Magistrate shall make an order stopping further investigation
into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the
interests of justice the continuation of the investigation beyond
the period of six months is necessary.
(6) Where any order stopping further investigation into an
offence has been made under sub-section (5), the Sessions
Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation into the offence ought to
be made, vacate the order made under sub-section (5) and
direct further investigation to be made into the offence subject
to such directions with regard to bail and other matters as he
may specify.
8. Section 167(1) Cr.P.C says that whenever any person is
arrested and detained in custody, and it appears that the investigation
cannot be completed within the period of 24 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 and shall at the same
time forward the accused to such Magistrate.
9. Section 167(2) proviso says that the Magistrate may authorize
the detention of the accused persons otherwise than in the custody of
the police beyond the period of 15 days if he is satisfied that adequate
ground exist for doing so, but no Magistrate shall authorize the
detention of the person in custody under this paragraph for a total
period exceeding 90 days where the investigation relates to an
offence punishable with death, imprisonment for life or imprisonment
for a term of not less than 10 years. As per Section 36A(4) of the
NDPS Act, the investigation, in this case, is to be completed within
180 days. If the same is not completed and the final report is not
submitted, the petitioner is entitled default bail.
10. Therefore, the point to be decided is whether the
investigation is completed or not within the period mentioned. The
investigation is defined in Section 2(h) of Cr.P.C. Section 2(h) says
that "investigation includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorized by a Magistrate in this
behalf". Therefore, the investigation includes all the proceedings
under the Code for the collection of evidence. In this case, the
investigating officer has already taken proceedings to get the analyst
report by submitting requisition before the court concerned and it is
already reached the laboratory. Therefore, it cannot be said that
simply because the analyst report is not received from the laboratory,
the investigation is not complete. Therefore, if the investigating officer
reported that the requisition for getting the analyst report is already
submitted before the authority concerned, and the lab report is
awaited, it cannot be said that the investigation is incomplete. But if
the investigating officer is mainly relying upon a lab report to prove
his case, and even in such a situation, a final report is filed without
the report, it cannot be said that it is a final report as contemplated
under law. Section 173 of the Criminal Procedure Code says about the
submission of the final report. Section 173 Cr.P.C says that, after the
conclusion of the investigation, the officer in charge of the police
station shall forward the report in the form prescribed with the details
mentioned therein. If the investigating officer after the investigation
concluded that the offence alleged against the petitioner is
maintainable based on the documents submitted before the Court, it
can be treated as a complete report u/s.173 Cr.P.C. In such a
situation, the investigating officer can submit before the Court that
the analyst report is not received and that is a supplementary
evidence or corroborative evidence to prove the charge sheet. In such
circumstances, it cannot be said that the final report submitted
before the court concerned is a defective final report. But in cases
where the prosecution cannot prove a case without the aid of the
analyst report and if a final report is filed in such cases without the
analyst report, it can only be treated as an incomplete final report and
in such situation, it cannot be said that the petitioner is not entitled
default bail at that stage. Therefore, the entitlement of default bail
u/s.167 Cr.P.C is to be decided based on the facts of each case. If the
prosecution is relying the analyst report as a corroborative piece of
evidence, it cannot be treated that if the final report is submitted
without analyst report, that is an incomplete report. It cannot be said
in such a situation that the investigation is not complete especially
because Section 2(h) of the Cr.P.C states that the investigation
includes all the proceedings under the court for the collection of
evidence. If the investigating officer already completed the
proceedings to get an analyst report by submitting appropriate
requisition before the court and the court concerned forwarded the
same to the laboratory, it cannot be said that simply because the
analyst report is not produced, the investigation is not completed.
What is necessary to get default bail u/s.167 (2)Cr.P.C is the failure to
complete the investigation within the time prescribed for
investigation. Once the investigating officer after completing the
investigation and sending the requisition to the authority concerned to
get the analyst report, submitted the final report, it cannot be said
that there is an incomplete final report unless it is a case in which the
entire prosecution case is relying solely based on the analyst report.
In this background, the present bail application is to be considered.
11. Admittedly, Hashish oil and MDMA seized from the apartment
are commercial quantities. The detecting officer specifically stated
that the identification of Hashish oil and MDMA are confirmed through
the Excise Inspector. Whether the Excise Inspector is competent or an
expert to identify the contraband as Hashish oil or MDMA is a matter
of evidence. While considering a bail application u/s.439 Cr.P.C, this
court cannot go into such questions and conclude that the Excise
Inspector who identified the article as MDMA and Hashish oil is not an
expert or a competent authority. In this case, admittedly the
requisition for getting the analyst report is already submitted and the
matter has already reached the lab concerned. The ADGP also
submitted that the report will be obtained within two weeks. In this
case even though the prosecution is relying the analyst report, they
rely on the same to corroborate the oral evidence already collected.
Hence it cannot be said that the final report submitted in this case is
incomplete and the petitioner is entitled default bail.
12. At this stage, this court has to consider one disturbing fact.
The ADGP submitted that there are only four authorized laboratories
in Kerala to analyze the contraband article like this. If there is delay in
getting analyst report, that may affect the prosecution case itself.
Certain urgent steps are to be taken by the State Government. The
ADGP submitted that the Government is taking every step to increase
the number of labs in this State. The ADGP submitted that the
laboratories can be established only with the permission of the Central
Government. The State Government should take appropriate
immediate steps to consult with the Central Government for
establishing adequate number of labs in the State of Kerala, so that
there is no delay in getting analyst report. The registry will send a
copy of this judgment to the Chief Secretary for taking appropriate
steps.
13. In the light of the discussion stated above, the petitioner is
not entitled default bail. The allegations against the petitioner are
very serious. It is the case of the prosecution that commercial
quantity of Hashish oil and MDMA is seized from the petitioner and
other accused. In such circumstances, I am not in a position to
release the petitioner on bail at this stage. The court concerned will
take immediate steps to complete the trial as expeditiously as
possible.
In the light of the above discussion, the following orders are
passed.
1) The bail application is dismissed.
2) The trial court will take every endeavour to dispose of the case
itself immediately after getting the analyst report.
3) The registry will forward a copy of this judgment to the Chief
Secretary, State of Kerala for taking appropriate steps to
establish sufficient number of laboratories as mentioned in
paragraph No.12.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
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/True copy/
P.S.to Judge
