Madras High Court
Complainant vs L.Antony Adimai on 12 December, 2022
Crl.R.C.(MD).No.735 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.12.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.735 of 2022
and
Crl.M.P.(MD) No.9064 of 2022
State, represented by
The Inspector of Police,
Pamban Police Station,
Ramanathapuram District.
Cr.No.171 of 2021. ... Revision Petitioner / Petitioner /
Complainant
Vs.
L.Antony Adimai ... Respondent / Petitioner / 1st Accused
PRAYER: This Criminal Revision Case is filed under Sections 397 r/w
401 of the Criminal Procedure Code, to call for the records and set aside the
order of the learned Additional District and Sessions Judge/Presiding
Officer, Special Court for EC and NDPS Cases, Pudukkottai dated
17.06.2022 in Cr.M.P.No.1253 of 2022.
For Petitioner : Mr. T.Senthil Kumar
Additional Public Prosecutor
For Respondent : Mr. M.Jegadeesh Pandian
1/6
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Crl.R.C.(MD).No.735 of 2022
ORDER
This Criminal Revision Case has been filed against the order passed
by the learned Additional District and Sessions Judge/Presiding Officer,
Special Court for EC and NDPS Cases, Pudukkottai, dated 17.06.2022 in
Cr.M.P.No.1253 of 2022.
2. The Facts in brief:
The respondent herein is the accused in Crime No.171 of 2021
for the offences under Section 8(c) r/w. 20(b)(ii)(c) NDPS Act. During the
course of investigation, the respondent was absconding. After completion of
investigation, Final Report has been laid and taken on cognizance in
C.C.No.37 of 2022 before the Special Court for EC and NDPS Cases,
Pudukkottai. In the First Information Report, the respondent is mentioned as
absconding accused. The respondent herein is the first accused, he had filed
the Anticipatory Bail Application before this Court in Crl.O.P.(MD) No.
11100 of 2021 and the same was dismissed on 04.02.2022, observing that
the requirement under Section 37 of NDPS Act has not been satisfied. Apart
from that, it was also observed that there are serious allegations to the fact
that he was involved in smuggling activities handling contra band and
smuggling to Sri Lanka. Subsequent to the passing of the above said order,
the respondent had approached the Special Court for EC and NDPS Cases,
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Crl.R.C.(MD).No.735 of 2022
Pudukkottai, in Cr.M.P.No.1253 of 2022, seeking permission to execute the
bond under Section 88 of Cr.P.C, and the same was considered by the trial
Court, observing that the order passed by this Bench in Crl.R.C.(MD) No.
735 of 2022 can be made applicable to the present case and thereby
permitted the respondent to execute the bond for Rs.10,000/- with two
sureties for each like sum on the ground that no summon was issued to him
at the time of taking cognizance.
3. Challenging the above said order, this Revision Case has been
preferred by the State, stating that in the facts and circumstance of this case,
the order passed by the trial Court is absolutely without jurisdiction, since
contra band involved is the commercial quantity, Section 37 of NDPS Act
ought to have been complied by the respondent. For the purpose of
showing that in such cases jurisdiction under Section 88 of Cr.P.C cannot be
exercised by the trial Court, by relying upon the judgment of the honourable
Supreme Court in Pankaj Jain Vs. Union of India, (2018) 5 SCC 743,
observation made to the effect that Section 88 of Cr.P.C cannot be invoked
as a matter of right as it is a discretionary power.
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Crl.R.C.(MD).No.735 of 2022
4. The learned Additional Public Prosecutor would submit that since
the respondent is facing charges for handling contra band in commercial
quantities, the trial Court has no jurisdiction to exercise power under
Section 88 of Cr.P.C. without complying Section 37 of NDPS Act.
5. Per contra, the learned Counsel for the respondent would submit
that in the above said judgment, it has not been stated that even in respect of
the offences under NDPS Act, the power under Section 88 of Cr.P.C. cannot
be exercised.
6. I am not inclined to agree with the point argued by the respondent's
Counsel. Even in the case of exercising jurisdiction under Section 88 of
Cr.P.C, provision under Section 37 of NDPS Act must be complied. If not
there will be no purpose for section 37 of NDPS Act, as rightly pointed out
by the State. If such a power is fruly exercised by the trial court in respect of
the special offences under the provision of NDPS Act, then accused who are
absconding, who are not available for interrogation during the investigation
period, may appear before the Special Court and seek exercise of power
under Section 88 of Cr.P.C., will have serious consequences, which in effect
will dilute the rigour and the object of Section 37 of NDPS Act. So, when
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Crl.R.C.(MD).No.735 of 2022
we approach this issue from this angle, then consequential answer will be
that the exercise made by the trial Court is absolutely without jurisdiction.
In the result, this Revision Case is liable to be allowed and
accordingly allowed.
The trial Court is directed to secure the accused and remand him
immediately pending trial. But this will not affect the right of accused to
approach the concerned Court seeking regular bail. If it is filed before the
trial Court, the trial Court may pass the orders on its own merits by strictly
complying Section 37 of NDPS Act. Consequently, connected
Miscellaneous Petition is closed.
12.12.2022
Index : Yes / No
Internet : Yes / No
indu
G.ILANGOVAN,J.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.735 of 2022
indu
To
1. The learned Special Court for EC and NDPS Cases,
Pudukkottai.
2.The Inspector of Police,
Pamban Police Station,
Ramanathapuram District
3.The Government Advocate (Crl.Side),
Madurai Bench of Madras High Court, Madurai.
Crl.R.C.(MD).No.735 of 2022
12.12.2022
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