Madras High Court
Ajithkumar vs State on 5 January, 2023
Crl.R.C.No.1556 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 05.01.2023
CORAM
THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM
Crl.R.C.No.1556 of 2022
1. Ajithkumar
2. John Solomon ... Petitioners
Vs.
State, represented by
the Inspector of Police,
Thiruppalaivanam Police Station,
Thiruvallur District ... Respondent
Criminal Revision filed under Section 397 and 401 of Cr.P.C., to set
aside the order passed in Crl.M.P.No.5205 of 2022, dated 31.10.2022 by the
learned Principal Special Judge for NDPS Act, Chennai by allowing the
Revision Petition.
For Petitioners : Mr. T.S. Sasikumar
For Respondent : Mr.V. Meganathan, GA, (crl.side)
ORDER
This criminal revision has been filed challenging the order passed in
Crl.M.P.No.5205 of 2022, dated 31.10.2022 by the learned Principal Special
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Crl.R.C.No.1556 of 2022
Judge for NDPS Act, Chennai, in and by which, the learned Principal Special
Judge has dismissed the bail application filed by the petitioners under section
167(2) Cr.P.C.
2. The learned counsel appearing for the petitioners contended that the
petitioners are arrayed as A1 and A2 in Crime No.53 of 2022 on the file of
respndent police. They were arrested on 20.04.2022 for the alleged offences
punishable under section 8(c) r/w.22(b) and 29(1) of the NDPS Act and they
are in custody from 20.04.2022. The limitation period for filing final report or
charge sheet is 180 days, but the respondent police did not file any final report
within 180 days. Therefore, as per section 167(2) Cr.P.C., which confers right
on the accused persons to be released on bail on the expiry of the period
contemplated under such section, the petitioners filed their bail petition
before the trial court on 17.10.2022, but the trial court has dismissed the said
bail petition on the ground hat the respondent police had filed a petition
seeking extension of time for fling final report in Crl.M.P.No.5053 of 2022,
but in the said petition, no order was passed by the trial court granting
extension of time for filing final report. In the circumstances, dismissing the
statutory bail application on the ground that merely the respondent police have
filed a petition seeking extension of time for filing final reprot, will take away
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Crl.R.C.No.1556 of 2022
the right of the petitioners/accused. Therefore, the impugned order is
unsustainable and the same is liable to be set aside. Thus, he seeks to set aside
the impugned order and grant bail to the petitioners.
3. The learned Govt. Advocate (crl.side) submitted that the respondent
police filed a petition in Crl.M.P.No.5053 of 2022 under Section 36A(4) of
NDPS Act for extension of time for filing final report. He fairly conceded
that no order was passed on that petition while passing the impugned order on
31.10.2022 and the said petition was allowed only on 23.12.2022. He would
further submit that since the application for extension of time is filed within
180 days, the impugned order is sustainable and hence, there is no reason to
interfere with the order passed by the trial court and pleaded to dismiss the
criminal revision petition.
4. I have considered the submissions made on either side and perused the
entire materials available on record.
5. On a perusal of records, the fact reveals that the respondent police,
while patrolling behind Palaverkadu Light House, they found the
petitioners/A1 and A2 along with A3. On seeing them, made an attempt to
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Crl.R.C.No.1556 of 2022
escape from that place, however, they have been caught by the police and on
enquiry, they seized LSD-Stamps 33 nos., MDMA Tablet-30 nos., Samsung
A71 and Samsung A30s Galaxy cell phones from the accused persons,
pursuant to which, a case has been registered on 19.4.2022 for the offences
punishable under sections 8(c), 22(b) and 29(1) of Narcotic Drugs and
Psychotropic Substances Act, 1985 in Cr.No.53 of 2022 and they were
remanded to judicial custody on 19.4.2022. Admittedly, the petitioners are in
custody since 19.4.2022.
6. As mandated under Section 167(2) of Cr.P.C., the final report should
be filed by the respondent police within a period of 180 days from the date of
arrest. Since the police failed to file final report within 180 days , the
petitioners filed a petition on 19.10.2022 seeking statutory bail after
completion of 180 days. The respondent police had also filed an application
under section 36 A(4) of NDPS Act in Crl.M.P.No.5053 of 2022 before the
trial court seeking extension of time for filing final report. Admittedly, the said
petition was filed before completion of 180 days. Unfortunately, the trial
court has not passed any order upon such extension petition filed by the
respondent police. On verification of facts, it is further revealed that the trial
court passed its order on the application for extension of time only on
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Crl.R.C.No.1556 of 2022
23.12.2022. Therefore, it is clear that on the date of completion of statutory
period, time for filing final report was not extended by the trial court .
7. The legislative mandate confers right on the accused to be released on
bail on the expiry of the period contemplated under the proviso to subsection
(2) of Section 167 Cr.P.C., if the accused offering himself to be released on
bail. In this case, the accused were remanded to judicial custody on
19.04.2022. Till the completion of 180 days, the respondent police did not
file final report. It is seen that the respondent police filed a petition for
extension of time for filing final report which was received by the trial court in
Crl.M.P.No.5053 of 2022, but in that petition, no order was passed as to
whether the time for filing final report is extended or rejected. In these
circumstances, the trial court without passing any order on time extension
petition, rejected the bail petition filed by the petitioners/accused. Further, on
perusal of records, it reveals that the trial court allowed the petition in
Crl.M.P.5053 of 2022 seeking extension of time only on 23.12.2022.
Therefore, on the date of deciding bail application filed by the petitioners, the
time for filing final report was not extended. Therefore, in view of the dictum
laid down by the Constitution Bench of our Honourable Supreme Court in the
case of Sanjay Dutt Vs. State Through B.I, Bombay (II) (1994(5) SCC
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Crl.R.C.No.1556 of 2022
page 410) which has been re-affirmed by subsequent judgment of the Supreme
Court in State of Madhya Pradesh Vs. Rustam, reported in 1995 SCC
Crl.830, if an accused filed an application, on the expiry of the period
contemplated under the proviso to sub section (2) of Section 167 Cr.P.C., and
offering him to release him on bail, no charge sheet had been filed by the
respondent police, then the accused has to be released on bail and the right
conferred upon him under the aforesaid provision of Cr.P.C., must be enforced.
Merely dismissing such application on the ground of receiving petition for
extension of time and kept the same pending without passing any order on that
application, would frustrate the right of the accused. Therefore, in view of
the above discussions, the order of the trial court is unsustainable and the same
is liable to be set aside.
8. Accordingly, the Criminal Revision Case is allowed and the
impugned order passed by the Principal Special Judge for NDPS Act, Chennai
is setaside and the petitioners/accused are enlarged on statutory bail on the
following conditions;
(i) Each of the petitioners shall execute a bond for a sum of
Rs.1,00,000/- (Rupees one lakh only), with two sureties, each for a
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Crl.R.C.No.1556 of 2022
like sum to the satisfaction of the Principal Special Judge for NDPS
Act, Chennai
(ii) The petitioners and sureties shall affix their photographs and
Left Thumb Impression in the surety bond and the said Court may
obtain a copy of their Aadhaar card or Bank pass Book to ensure
their identity; and
(iii) The petitioners shall appear before the respondent police
everyday at 10.30 a.m. for a period of three months and thereafter as
and when required for interrogation.
05.01.2023
msr
Index:Yes/No
Internet:Yes/No
To
1.The Principal Special Judge for NDPS Act, Chennai
2.The Inspector of Police,
E2, Thirupalaivanam Police Station, Thiruvallur District.
3.The Public Prosecutor, High Court, Madras.
4. The Superintendent, Central Prison,
Puzhal, Chennai.
Note: Issue copy on 10.01.2023.
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Crl.R.C.No.1556 of 2022
V. SIVAGNANAM, J.
msr
Crl.R.C.No.1556 of 2022
05.01.2023
https://www.mhc.tn.gov.in/judis
