Madras High Court

Srinivasan @ Seenu vs State on 30 March, 2023

                                                                                Crl.R.C.No.551 of 2023



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED 30.03.2023

                                                      CORAM

                                  THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM

                                              Crl.R.C.No.551 of 2023

                 Srinivasan @ Seenu                                                  ... Petitioner
                                                         Vs.

                State, represented by
                the Inspector of Police,
                H-5, New Washermenpet Police Station,
                Chennai 600 081.
                Cr.No.402 /2022                                                    ...
                Respondent

                          Criminal Revision filed under Section 397 and 401 of Cr.P.C., to call for
                the records relating to Crl.M.P.no.6410 of 2022 on the file of the Principal
                Special Judge, Principal Special Court under EC & NDPS Act, Chennai and set
                aside the order dated 30.12.2022.



                                        For Petitioner : Mr. M.G.Martin Manivannan
                                        For Respondent : Mr.R.Vinoth Raja, GA, (crl.side)


                                                     ORDER

This criminal revision has been filed challenging the order passed in

Crl.M.P.No.6410 of 2022, dated 30.12.2022 by the learned Principal Special

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Crl.R.C.No.551 of 2023

Judge, Principal Special Court under EC & NDPS Act, Chennai, in and by

which, the learned Principal Special Judge has dismissed the bail application

filed by the petitioner under section 167(2) Cr.P.C.

2. The learned counsel appearing for the petitioner contended that the

respondent police registered a case against the petitioner and other persons in

Cr.No.402 of 2022 for the offences punishable under sections 8(c), r/w.22(C) of

NDPS Act, 1985. The petitioner/A1 was arrested on 16.06.2022 and remanded

to judicial custody. After the expiry of statutory period of 180 days, the

respondent police, has not filed a final report. Hence the petitioner filed

statutory bail application before the trial court. The trial court, by passing the

impugned order dated 30.12.2022, dismissed the bail petition on the ground

that the application filed by the prosecution in Crl.M.P.No.6329 of 2022 on

8.12.2022, seeking extension of statutory period of investigation is pending

consideration and the same is posted for further proceedings. The learned

Special Judge, without deciding the petition seeking extension of statutory

period of investigation, dismissed the statutory bail application. It is against

the principle stated by the Hon'ble Supreme Court. He further submitted that

petition seeking extension of statutory period of investigation was allowed by

the learned Judge subsequently only on 19.01.2023 and not decided on the

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Crl.R.C.No.551 of 2023

same date when deciding the statutory bail application. In the circumstances,

dismissing the statutory bail application on the ground that merely the

prosecution has filed a petition seeking extension of time for completing

investigation, will take away the right of the petitioner/accused. Therefore, the

petitioner is entitled for statutory bail. Thus, he seeks to set aside the

impugned order and grant bail to the petitioner.

3. The learned Govt. Advocate (crl.side) submitted that the prosecution

has filed an application seeking extension of statutory period of investigation on

08.12.2022 before completion of 180 days and it was received by the learned

Judge in Crl.M.P.No.6329 of 2022 and on 19.01.2023, the same was allowed

by extending time for further period of 180 days for completion of investigation.

Hence, the petitioner is not entitled for statutory bail. Therefore, 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.

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Crl.R.C.No.551 of 2023

5. On a perusal of records, it is seen that the respondent police registered

a case against the petitioner and other persons in Cr.No.402/2022 for the

offence punishable under sections 8(c), r/w.22(C) of NDPS Act, 1985 for

illegal possession of 21 MMDA ECSTACY tablets weighing 12 grams 23

milligram, pursuant to which, the respondent police arrested the petitioner/A1

along with accused persons and remanded them to judicial custody on

16.06.2022. Since the respondent police has not filed final report within 180

days as mandated under section 167(2) of Cr.P.C., it filed application seeking

time for completing investigation under section 36(A)(4) of NDPS Act on

08.12.2022 before completion of 180 days. Further, it is noticed that the

petitioner filed statutory bail application on 14.12.2022, after completion of

180 days. It is noticed that in the impugned order, the learned trial judge

received the extension application filed by the respondent police in

Crl.MP.No.6329 of 2022 on 8.12.2022. But he has not decided the petition in

Crl.M.P.No.6329 of 2022 seeking extension, while deciding statutory bail

application filed by the petitioner in Crl.M.P.No.6410 of 2022. Further, it is

noticed that only on 19.1.2023, the learned trial Judge ordered

Crl.M.P.No.6329 of 2022 seeking extension of time for investigation.

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Crl.R.C.No.551 of 2023

6. It is the settled principle by the 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 that the court

is to require to examine the availability of the right on the compulsive bail on

the date of its considering the question of bail and not barely on the date of the

presentation of the petition for bail. Further, it is also held that if application for

grant of bail on such default as well as prayer for extension of time to complete

investigation made, both to be considered together and bail can be granted only

on rejection of prayer for extension of time. In this case, the learned Judge not

followed the principle as stated by the Honourable Supreme Court. Considering

the fact that the statutory bail application was filed on 14.12.2022, but

undeciding the application for extension of time for investigation filed by the

respondent police, the trial judge has dismissed the statutory bail application

alone on 30.12.2022 and posted the application for extension of time for

investigation on 11.01.2023 and 12.01.2023 and finally on 19.01.2023 allowed

that application. Thus it is clear that in the instant case, the learned trial Judge

has not considered both the applications on the same day and without deciding

Crl.M.P.No.6329 of 2022 seeking time extension application filed by the

prosecution, he dismissed the statutory bail application filed by the petitioner

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Crl.R.C.No.551 of 2023

which is violation of the principle laid down by the Supreme Court in cases

cited supra. Therefore, the impugned order passed by the trial judge is

unsustainable and the same is liable to be set aside. In view of the

foregoing discussions, the impugned order is set aside and statutory bail is

granted to the petitioner.

7.Accordingly, the impugned order dated 30.12.2022 passed in

Crl.M.P.No.6410 of 2022 by the learned Principal Special Judge, Principal

Special Court under EC & NDPS Act, Chennai, is set aside and Statutory Bail

is granted to the petitioner and the petitioner is ordered to be released on bail on

executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand

only) with two sureties for a sum of Rs.25,000/- (Rupees Twenty Five

Thousand only) each, before the XV Metropolitan Magistrate, G.T.Court,

Chennai on the following conditions;

(a) 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;

(b) the petitioner shall not tamper with evidence or witness either during investigation or trial;

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Crl.R.C.No.551 of 2023

(c) the petitioner to appear before the respondent police on the first working day of every month at 10.30 a.m., until further orders.

(d) the petitioner shall not abscond either during investigation or trial;

(e) on breach of any of the aforesaid conditions, the learned Magistrate/ Trial Court is entitled to take appropriate action 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;

(f) if the accused thereafter absconds, a fresh FIR can be registered under Section 229-A IPC.

8. With the above directions, this Criminal Revision Case is allowed.

30.03.2023 msr Index:Yes/No Internet:Yes/No Note: Issue copy on 3.4.2023

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Crl.R.C.No.551 of 2023

1.The Principal Special Judge Principal Special Court under EC & NDPS Act, Chennai

2.The XV Metropolitan Magistrate, G.T.Court, Chennai

2.The Inspector of Police, H-5, New Washermenpet Police Station, Chennai 600 081.

3.The Public Prosecutor, High Court, Madras.

4. The Superintendent, Central Prison, Puzhal, Chennai.

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Crl.R.C.No.551 of 2023