Kerala High Court
Bunashkhan @ Achu vs State Of Kerala on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
CRL.MC NO. 153 OF 2022
AGAINST THE ORDER/JUDGMENT IN CRMP 2581/2021 OF DISTRICT & SESSIONS
COURT, ALAPPUZHA
CRIME NO.90/2021 OF VALLIKUNNAM POLICE STATION, ALAPPUZHA.
PETITIONER/ACCUSED NO.1:
BUNASHKHAN @ ACHU,
AGED 28 YEARS
S/O. THAJUDEEN, BISMINA MANZIL, MANJADITHARA MURI,
BHARANIKKAVU VILLAGE, (FROM KOTTAYIL VEEDU, ERUVA MURI).
BY ADVS.
K.SASIKUMAR
S.ARAVIND
P.S.RAGHUKUMAR
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, KOCHI 31.
OTHER PRESENT:
PP SRI SANAL P RAJ
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 153 OF 2022
2
O R D E R
This is an application filed under Section 482 of the Code
of Criminal Procedure, 1973 (for short 'the Cr.P.C.') seeking to
set aside an order passed by the Court of Sessions, Alappuzha on
23.12.2021, copy of which is produced alongwith as Annexure
A4. The order assailed was passed in Crl.M.P. No. 2581/2021 in
Crime No.90/2021 of Vallikunnam Police Station, Alappuzha.
The application was filed by the investigating officer seeking for
extension of period for completion of investigation and period of
detention of accused No.1 in the crime for a period of one year
under Section 36 A (4) of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short 'the NDPS Act'). The 1 st
accused is the counter petitioner in the application.
2. The application was allowed by the Court and time
was extended beyond the period of 180 days. The court below
failed to state in the impugned order the time extended for
CRL.MC NO. 153 OF 2022
conclusion of investigation and custody. As per the provision the
court can extend the time upto one year beyond 180 days on
being convinced from the report of the Public Prosecutor
indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond 180 days.
3. The learned Public Prosecutor has contended that
though the application was filed by the investigating officer, it
was signed by the Public Prosecutor and therefore compliance of
the direction in the provision is met with.
4. It is pertinent to note that such a context is not
contemplated by the provision. As per the provision, the Public
Prosecutor has to file a report indicating the progress of the
investigation and stating the specific reasons warranting the
detention of the accused beyond 180 days.
5. In the case on hand an application was filed by the
investigating officer. The progress of the investigation is not
CRL.MC NO. 153 OF 2022
stated. What is contemplated under Sub-Section (4) of Section
36A is a report. Instead of that, an application is filed, that too by
the investigating officer who was not authorised by the
provision. The court also failed to state in the order the time
granted in extension. As per the provision court can extent the
period upto one year, beyond 180 days. Therefore, the direction
in the provision is violated. The impugned order being passed in
an application filed by an incompetent person is illegal and is
only to be set aside.
In the result, Crl.M.C is allowed and the impugned order is
set aside reserving liberty to the Prosecutor concerned to file a
report as mandated by the provision.
Sd/-
MARY JOSEPH
JUDGE
al/-
CRL.MC NO. 153 OF 2022
APPENDIX OF CRL.MC 153/2022
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED BY THE CONSULTANT ORTHOPEDIC
SURGEON AND HEAD OF THE DEPARTMENT OF
ORTHOPEDIC SURGERY, MEDICAL TRUST
HOSPITAL, COCHIN DATED 8.3.2021.
Annexure A2 A TRUE COPY OF THE PETITION FILED BY
THE INVESTIGATION OFFICER BEFORE THE
HON'BLE SESSIONS COURT, ALAPPUZHA DATED
2.12.2021.
Annexure A3 A TRUE COPY OF THE JUDGMENT OF THE
HON'BLE HIGH COURT OF KERALA IN
CRL.M.C. NO. 2141/2013.
Annexure A4 A TRUE COPY OF THE ORDER PASSED BY THE
HON'BLE SESSIONS COURT, ALAPPUZHA IN
CRL.M.P NO. 2581/2021 DATED 23.12.2021.
