Sudheesh vs State Of Kerala
2023 Latest Caselaw 1945 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
            THE HONOURABLE MR.JUSTICE V.G.ARUN
 FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                   CRL.MC NO. 109 OF 2023
  AGAINST THE ORDER IN CRMP 3053/2022 OF SESSIONS COURT,
                           THRISSUR
PETITIONER/S:

          SUDHEESH
          AGED 21 YEARS
          KARIMUTTIL HOUSE, KARIKKAD P O, THRISSUR-,
          PIN - 680519
          BY ADVS.
          C.RAJENDRAN
          R.S.SREEVIDYA
          B.K.GOPALAKRISHNAN

RESPONDENT/S:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
          KERALA ERNAKULAM, PIN - 682031
          BY ADV PUBLIC PROSECUTOR

OTHER PRESENT:

          PP M.C.ASHI


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
03.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.109 of 2023

                                       -2-



                                  ORDER

Dated this the 3rd day of February, 2023

The petitioner is the second accused in Crime

No.470 of 2022 of Kunnamkulam Police Station,

registered for offences punishable under Sections

22(c) and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. The

prosecution allegation is that, at about 10.35

p.m on 03.04.2022, the police party stopped the

motor bike in which the accused were traveling

and on search, detected and recovered 10.80 grams

of MDMA at a place called Parembadam.

Consequently, the petitioner was arrested on

04.04.2022 and is continuing in judicial custody.

As the maximum period of detention is 180 days,

the investigating officer filed Crl.M.P.No.3053

of 2022, under Section 36A(4) of the NDPS Act,

seeking extension of the detention period by

another 180 days, so as to complete the Crl.M.C.No.109 of 2023

investigation. In the meanwhile, the petitioner

had filed a petition seeking statutory bail, as

the final report was not filed within 180 days.

The learned Sessions Judge considered the

petition and as per Annexure A5 order, allowed

the petition filed by the investigating officer

and granted a further period of one month for

completing the investigation. This Crl.M.C is

filed challenging Annexure A5 order.

2. Learned Counsel for the petitioner

contended that the impugned order is liable to be

set aside on three grounds;

(i) The petition under Section 36A (4) was

filed by the investigating officer and not the

Public Prosecutor.

(ii) In the petition, the progress of

investigation and specific reason for extension,

as mandated under Section 36A(4) was not stated.

(iii) The order was passed without the

petitioner being produced before the court. Crl.M.C.No.109 of 2023

It is pointed out that, the third accused had

filed Crl.M.C No.8404 of 2022 challenging an

identical order. The challenge is upheld by

Annexure A6 order, after detailed consideration

of all relevant facts and legal aspects.

3. Learned Public Prosecutor submitted that

the quantity of MDMA being 10.80 grams, that

itself is sufficient reason to refrain from

interfering with the impugned order. It is also

pointed out that the investigation has since been

completed and final report filed.

4. No doubt, the quantity of contraband

seized is large. At the same time, this Court

cannot be oblivious to the fact that the petition

under Section 36A(4) was filed by the

investigating officer and not the Public

Prosecutor. I need not delve into the above

aspect in detail, as the issue was elaborately

considered in Annexure A6 order.

5. There is also substantial merit in the Crl.M.C.No.109 of 2023

contention that the order was passed without

producing the accused before the court. The said

contention also is liable to be upheld in view of

the well considered judgment of the Apex Court

in Jigar @ Jimmy Pravinchandra Adatiya v. State

of Gujarat [2022 SCC OnLine SC 1290]. Therein,

the order passed by the Special Court, extending

the period of investigation was held illegal on

account of failure to produce the accused before

the court, either physically or virtually.

6. The order is liable to be set aside

based on the third ground of challenge also

since, a reading of Annexure A3 petition shows

that, other than seeking time for completing the

investigation, neither the progress of

investigation or specific reason for seeking

extension of the detention period was stated. For

the aforementioned reasons, I am constrained to

quash the impugned order.

Crl.M.C.No.109 of 2023

In the result, the Crl.M.C is allowed and

Annexure A5 order is set aside. Consequently, the

Special Court is directed to release the

petitioner on bail subject to the petitioner

satisfying the following conditions;

(i) The petitioner shall execute a bond for

Rs.1,00,000/- with two solvent sureties for the

like amount to the satisfaction of the Special

Judge.

(ii) The petitioner shall surrender his

passport, if any, before the Sessions Court on

the date of execution of bond, or within a period

of three days thereafter, after getting exemption

in this regard from the Sessions Court. If he

has no passport, he shall file an affidavit

stating so, on the date of execution of bond or

within three days' thereafter.

(iii) The petitioner shall co-operate with

the investigation and shall make himself

available for interrogation by the investigating Crl.M.C.No.109 of 2023

officer as and when required.

(iv) The petitioner shall not commit any

offence during the currency of this bail.

Sd/-

V.G.ARUN JUDGE Scl/ Crl.M.C.No.109 of 2023

APPENDIX OF CRL.MC 109/2023

PETITIONER ANNEXURES Annexure A1 A TRUE PHOTOCOPY OF THE REMAND APPLICATION BY THE SUB INSPECTOR OF POLICE DATED 04/04/2022 BEFORE THE PRINCIPAL DISTRICT & SESSIONS COURT, THRISSUR IN CRIME NO 470/2022 OF THE KUNNAMKULAM POLICE STATION Annexure A2 THE TRUE PHOTOCOPY OF THE ORDER IN CRL. MP NO. 3181/2022 OF THE SESSIONS JUDGE, THRISSUR DATED 18/10/2022 Annexure A3 A TRUE PHOTOCOPY OF THE PETITION FILED BY THE PUBLIC PROSECUTOR UNDER SECTION 36A(4) OF THE NDPS ACT DATED 27/09/2022 BEFORE THE FIRST ADDITIONAL SESSIONS JUDGE THRISSUR Annexure A4 A TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER TO THE PETITION FILED BY THE PUBLIC PROSECUTOR DATED 13/10/2022 Annexure A5 A CERTIFIED COPY OF THE ORDER DATED 18/10/2022 IN CRL MP NO. 3053/2022 OF THE SESSIONS JUDGE, THRISSUR Annexure A6 A TRUE PHOTOCOPY OF THE ORDER IN CRL MC 8404/2022 BEFORE THIS HON'BLE COURT DATED 08/12/2022