Madras High Court
Surya vs The State Of Tamil Nadu on 23 January, 2023
Crl.R.C.No.1613 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.R.C.No.1613 of 2022
Surya. ... Petitioner
/vs/
The State of Tamil Nadu,
Rep. by the Inspector of Police,
N-1, Royapuram Police Station,
Chennai. .. Respondent
Prayer : Criminal Revision Case is filed under Section 397 and 401 of
Cr.P.C., to set aside the dismissed bail order dated 04.08.2022 in respect of
default bail application under Section 167(2) of Cr.P.C., vide
Crl.M.P.No.3295 of 2022 passed by the Learned Principal Special Judge,
Special Court under EC & NDPS Act, Chennai, connected with Crime No.37
of 2022, on the file of respondent police.
For Petitioner ... Mr.W.Camyles Gandhi
For Respondent ... Mr.C.E.Pratap,
Government Advocate (Crl.Side)
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Crl.R.C.No.1613 of 2022
ORDER
Challenging the impugned order dated 04.08.2022 passed in
Crl.M.P.No.3295 of 2022 in Crime No.37 of 2022 on the file of Special
Court under EC & NDPS Act, Chennai, the present Criminal Revision Case
has been filed.
2. The Learned Counsel for the petitioner contended that the petitioner
is the 5th accused and the respondent police registered the case against this
petitioner along with other persons in Crime No.37 of 2022 for offences
under Sections 8 (c) r/w 20(b)(ii)(c) and 29(1) of NDPS Act and he was
arrested and remanded to judicial custody from 14.01.2022. The allegation is
that the contraband of 160 kgs of Ganja has been seized from the accused. As
mandated under Section 167(2) of Cr.P.C, the limitation period for filing
final report is within 180 days, so far, no final report has been filed before the
statutory period. Hence, the petitioner is entitled for statutory bail.
Therefore, the petitioner filed an application before the trial Court in
Crl.M.P.No.3295 of 2022, which was dismissed on the ground that the
respondent police filed an application on 08.07.2022 i.e., 176th day, before
completion of 180 days, under Section 36A(4) of NDPS Act, for extension of
time for filing final report. The extension petition was permitted by this
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Crl.R.C.No.1613 of 2022
Court on the same day. Therefore, the trial Court ordered extension of time
only on 11.08.2022. Therefore, the observation made by the Court in the
dismissal order is unsustainable. Hence, this petition has been filed seeking
to set aside the impugned order passed by the trial Court and to enlarge the
petitioner on bail under Section 167 (2) of Cr.P.C.
3. The Learned Government Advocate (Crl.Side) for the respondent
submitted that the petitioner was arrested by the respondent police in crime
No.37 of 2022 for offences under Sections 8 (c) r/w 20(b)(ii)(c) and 29(1) of
NDPS Act. Further, he submitted that within the statutory period of 180 days,
the respondent police has not filed the final report, but he filed an application
under Section 36A(4) of NDPS Act, on 08.07.2022 before the completion of
180 days. Though the trial Court in the impugned order mentioned that the
extension of time was ordered on the same day itself, but the order was
passed only on 11.08.2022.
4. Heard the Learned Counsel for the petitioner and the Learned
Government Advocate (Crl.Side) for the respondent. Perused the records.
5. On perusal of records, the fact reveals that the petitioner is the 5th
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Crl.R.C.No.1613 of 2022
accused in Crime No.37 of 2022. The respondent police registered a case
against the petitioner for the offences under Sections 8(c) r/w 20(b)(ii)(c) and
29(1) of the NDPS Act and seized the contraband of 160 kgs ganja, from the
accused persons on 14.01.2022 and thereafter, they arrested and remanded
the accused to judicial custody on 14.01.2022.
6. In view of Section 167(2) of Cr.P.C., final report has to be filed
within 180 days. Since the respondent police has not filed the final report
within 180 days, the petitioner filed an application under Section 167(2) of
Cr.P.C., in Crl.M.P.No.3295 of 2022 for statutory bail and the same was
dismissed as not maintainable by the trial Court on 04.08.2022 by giving a
reason that the respondent police filed a petition in Crl.M.P.No.3306 of 2022
under Section 36A(4) of NDPS Act seeking further extension of time for
completion of investigation is ordered. Therefore, the observation made by
the trial Court in Crl.M.P.No.3295 of 2022 is incorrect and the petitioner is
entitled for statutory bail.
7. 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 page 410), which has been re-affirmed by
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Crl.R.C.No.1613 of 2022
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 for
statutory bail, 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 final report 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
petitioner/accused is enlarged on statutory bail on the following conditions,
(i) The petitioner shall execute a bond for a sum of
Rs.25,000/- (Rupees Twenty five thousand only) along
with two sureties, each for a likesum to the satisfaction of
the Principal Special Court under EC & NDPS Act,
Chennai.
(ii) The petitioner and the sureties shall affix their photographs
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Crl.R.C.No.1613 of 2022
and Left Thumb Impression in the surety bond and the trial
Court may obtain a copy of their Aadhaar card or Bank
pass Book to ensure their identity; and
(iii) The petitioner shall appear before the trial Court as and
when required.
23.01.2023
Index : Yes/No.
Internet :Yes/No.
bsm
Note: Issue order copy on 25.01.2023
To,
1. The Learned Principal Special Judge, Special Court under EC & NDPS
Act, Chennai.
2. The Inspector of Police, N-1, Royapuram Police Station, Chennai.
3. The Superintendent, Central Prison, Puzhal.
3.The Public Prosecutor, High Court, Madras
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Crl.R.C.No.1613 of 2022
V.SIVAGNANAM, J.
bsm
Crl.R.C.No.1613 of 2022
23.01.2023
https://www.mhc.tn.gov.in/judis
