Madras High Court
Nakkaramana vs The State Of Tamil Nadu on 30 June, 2023
Crl.R.C.No.1180 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 30.06.2023
CORAM
THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM
Crl.R.C.No.1180 of 2023
Nakkaramana ... Petitioner
Vs.
The State of Tamil Nadu,
Rep by the Inspector of Police,
N-1, Royapuram Police Station,
Chennai ... Respondent
Criminal Revision filed under Section 397 r/w 401 of Cr.P.C., to
set aside the order passed in Crl.M.P.No.3310 of 2022, dated 19.07.2022
on the file of the Principal Special Court for NDPS Act Cases at Chennai
and enlarge the petitioner on mandatory bail under Section 167(2) Cr.P.C
in Crime No.37 of 2022, pending on the file of the respondent police.
For Petitioner : Mr.M.S.Ramesh
For Respondent : Mr.R.Vinothraja, GA, (crl.side)
ORDER
This criminal revision has been filed challenging the order passed
in Crl.M.P.No.3310 of 2022, dated 19.07.2022 by the learned Principal
Special Judge for NDPS Act, Chennai, in and by which, the learned
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Crl.R.C.No.1180 of 2023
Principal Special Judge has dismissed the bail application filed by the
petitioners under section 167(2) Cr.P.C r/w 36(A) of NDPS Act.
2.The Learned Counsel for the petitioner contended that the
petitioner is the 1st 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 she was arrested and remanded to judicial custody from 14.01.2022.
The allegation is that from the accused persons, the respondent police has
seized 160 kgs of Ganja. 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.3310 of 2022, which was
dismissed on the ground that the respondent police filed an application on
08.07.2022 i.e.,176 th day, before completion of 180 days, under Section
36A(4) of NDPS Act, for extension of time for filing final report and the
extension petition was permitted by this Court on the same day.
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Crl.R.C.No.1180 of 2023
However, the trial Court passed an order in petition seeking 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 it filed an application in Crl.M.P.No.3306 of 2022 seeking extension
of statutory period of investigation for a period of 60 more days 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
Crl.M.P.No.3306 of 2022 was ordered only on 11.08.2022.
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Crl.R.C.No.1180 of 2023
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 1st
accused in Crime No.37 of 2022. The respondent police registered a case
against the petitioner along with other accused 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 were arrested and remanded the accused to judicial
custody on 14.01.2022. Further, on perusal of the records, it is noticed
that the statutory bail application was dismissed on 19.07.2022 in
Crl.M.P.No.3310 of 2022. The extension of time application in
Crl.M.P.No.3306 of 2022 was granted on 11.08.2022, i.e, after the
dismissal of statutory bail application.
6. Perusal of records would reveal that though the learned
Principal Special Judge, Special Court under EC and NDPS Act, Chennai
has stated that on the same day, i.e,on 08.07.2022, Crl.M.P.No.3306 of
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Crl.R.C.No.1180 of 2023
2022 seeking extension of statutory period was permitted, he disposed
the said application only on 11.08.2022 and learned Govt. Advocate
(crl.side) also admitted that extension of time application was allowed on
11.08.2022.
7.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, r/w 36(A) of NDPS Act, in Crl.M.P.No.3310 of 2022 for
statutory bail and the same was dismissed as not maintainable by the trial
Court on 19.07.2022 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.3310 of 2022 is incorrect and the petitioner is entitled for
statutory bail.
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Crl.R.C.No.1180 of 2023
8.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 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.
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Crl.R.C.No.1180 of 2023
9.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 and left thumb impression in the surety bond
and the Court concerned may obtain a copy of their Aadhar
card or Bank pass Book to ensure their identity;
(iii) the petitioner shall not tamper with evidence or witness
either during investigation or trial;
(iv) the petitioner to appear before the trial court on the first
working day of every month at 10.30 a.m., until further orders.
(v) the petitioner shall not abscond either during
investigation or trial;
(vi) on breach of any of the aforesaid conditions, the learned
Magistrate/ Trial Court is entitled to take appropriate action
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Crl.R.C.No.1180 of 2023
against the petitioner in accordance with law as if the conditions
have been imposed and the petitioner released on bail by the
learned Magistrate/Trial Court himself as laid down by the
Hon'ble Supreme Court in P.K.Shaji Vs. State of Kerala [(2005)
AIR SCW 5560]; and;
(vii) if the petitioner/accused thereafter absconds, a fresh
FIR can be registered under Section 229-A IPC.
30.06.2023
msr
Index:Yes/No
Internet:Yes/No
To
1.The Principal Special Judge for NDPS Act, Chennai
2.The Inspector of Police,
N-1, Royapuram Police Station,
Chennai
3.The Public Prosecutor, High Court, Madras.
4. The Superintendent, Central Prison II,
Puzhal, Chennai.
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Crl.R.C.No.1180 of 2023
V. SIVAGNANAM, J.
msr
Crl.R.C.No.1180 of 2023
30.06.2023
https://www.mhc.tn.gov.in/judis
