Madras High Court
R.Pandiyarajan vs / on 5 August, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :29.07.2024
Pronounced on :05.08.2024
CORAM:
THE HONOURABLE DR JUSTICE G.JAYACHANDRAN
Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
Crl.O.P.No.13636 of 2024:
R.Pandiyarajan ..Petitioner/A-4
/versus/
Union rep.by
The Intelligence Officer,
NCB, Chennai,
R.R.No.23 of 2023 .. Respondent/
Complainant
Criminal Original Petition has been filed under Section 482 of
Cr.P.C to set aside the order passed in Crl.M.P.No.1197 of 2024, dated
20.02.2024 on the file of the Principal Special Judge under EC & NDPS
Act, Chennai.
For Petitioner :Mr.M.G.Martin Manivanan for
Mr.S.Karthik
For Respondent :Mr.N.P.Kumar, Spl.P.P
(NCB Cases)
1/22
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
Crl.O.P.No.13637 of 2024:
R.Pandiyarajan ..Petitioner/A-4
/versus/
Union rep.by
The Intelligence Officer,
NCB, Chennai,
R.R.No.23 of 2023 .. Respondent/
Complainant
Criminal Original Petition has been filed under Section 482 of
Cr.P.C to set aside the order passed in Crl.M.P.No.240 of 2024, dated
12.01.2024 on the file of the Principal Special Judge under EC & NDPS
Act, Chennai.
For Petitioner :Mr.M.G.Martin Manivanan for
Mr.S.Karthik
For Respondent :Mr.N.P.Kumar, Spl.P.P
(NCB Cases)
Crl.O.P.No.13641 of 2024:
M.Allah Pichai ..Petitioner/A-6
/versus/
Union rep.by
The Intelligence Officer,
NCB, Chennai,
R.R.No.23 of 2023 .. Respondent/
Complainant
2/22
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
Criminal Original Petition has been filed under Section 482 of
Cr.P.C to set aside the order passed in Crl.M.P.No.240 of 2024, dated
12.01.2024 on the file of the Principal Special Judge under EC & NDPS
Act, Chennai.
For Petitioner :Mr.M.G.Martin Manivanan for
Mr.S.Karthik
For Respondent :Mr.N.P.Kumar, Spl.P.P
(NCB Cases)
Crl.O.P.No.13643 of 2024:
M.Allah Pichai ..Petitioner/A-6
/versus/
Union rep.by
The Intelligence Officer,
NCB, Chennai,
R.R.No.23 of 2023 .. Respondent/
Complainant
Criminal Original Petition has been filed under Section 482 of
Cr.P.C to set aside the order passed in Crl.M.P.No.1197 of 2024, dated
20.02.2024 on the file of the Principal Special Judge under EC & NDPS
Act, Chennai.
For Petitioner :Mr.M.G.Martin Manivanan for
Mr.S.Karthik
For Respondent :Mr.N.P.Kumar, Spl.P.P
(NCB Cases)
----------
3/22
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
COMMON ORDER
These four Criminal Original Petitions are by Pandiyarajan and
Allah Pitchai, who are the 4th and 6th accused in C.C.No.7922/2024
pending on the file of the Principal Special Court for NDPS cases at
Chennai.
2. The 4th accused Pandiarajan is the petitioner in
Crl.O.P.Nos.13636 and 13637 of 2024
3. The 6th accused M.Allah Pichai is the petitioner in
Crl.O.P.Nos.13641 and 13643 of 2024.
4. Before the Special Court, the petitioners along with other
accused persons filed application for bail on 05/02/2024 under Section
37 of NDPS Act r/w Section 167(2) of Cr.P.C. and taken on file in
Crl.M.P.No.1197/2024. Prior to this petition, the Intelligence Officer of
NCB, Chennai filed petition u/s 36 A (4) of the NDPS Act for extension
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
of time to file the complaint otherwise than the police report and taken on
file in Crl.M.P.No.240/2024.
5. The Learned Special Court Judge, allowed the petition
Crl.M.P. No:240/2024 on 12/01/2024 filed by the prosecution for
extension of time and dismissed the bail petition filed by the petitioners
herein, in Crl.M.P.No.1197/2024 on 20/02/2024.
6. Challenging the above two orders, these Criminal Original
Petitions are filed under Section 482 of Cr.P.C.
7. Since the facts and issue involved is one and same, all the
four petitions are taken together and the common order passed.
8. Prosecution case:
On 24th July, 2023, based on specific information that ganja
being transported from Vizag to Chennai for onward transport to Srilanka
through Rameshwaram, surveillance was mounted near Karanodai Toll
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
gate by the NCB officials. At midnight of 24/25 July, 2023, a TATA truck
bearing registration No: TN 31 BD 6347 was intercepted and from the
vehicle, 432.700 Kg of ganja seized. One Mr.KadarBasha (Driver-A-1)
and the co-passenger Mr.Senthil Kumar (A-2) were interrogated. On their
information, V.Velu, Pandiayarajan and Jahir Hussain were summoned to
NCB office and their statements were recorded. All these accused
persons admitted their respective role in procuring ganja from Vizag and
its transport to Chennai in TATA Truck. They were all arrested on
26/07/2023.
9. The arrested accused persons disclosed the name of Allah
Pitchai who played a pivotal role in arranging finance for procuring the
ganja and also his involvement in organising the illegal transportation of
ganja outside India through Rameswaram. The said Allah Pitchai was
arrested on 28/07/2023.
10. These two petitioners along with other accused persons
filed petition for bail pleading innocence. They claim no contraband was
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recovered from them and during the time of arrest, they were neither in
conscious possession or physical possession of the contraband. Merely
based on the confession of co-accused, they are implicated in the crime.
Further, they contended that the respondent/NCB not filed the final
report within 180 days from the date of their arrest as stipulated under the
NDPS Act. Hence they are entitled for statutory bail under Section
167(2) of CrPC.
11. The Special Court dismissed the bail petition recording that
the respondent/complainant had filed petition on 05/01/2024 u/s 36A(4)
of th NDPS Act for extension of time by six months for completing the
investigation. The notice to the accused person was attempted to be
served through the prison authority, but the accused persons refused to
receive it and made endorsement in the notice on 09/01/2024.
Considering the facts and circumstances stated in the petition, same was
allowed on 12/01/2024.
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12. In Crl.O.P.No:13636/2024 filed by Pandiyarajan and
Crl.O.P.No.13643/2024 filed by Allah Pichai, the order of the Special
Court passed in Crl.M.P. 1197/2024 is challenged on the ground that, the
mandatory bail petition ought not to have been dismissed quoting the
order passed in Crl.M.P.No.240/2024 extending the time for
investigation. The petition for bail in Crl.M.P.No.1197/2024 was filed on
05/02/2024. On that day, it was 190th day for Pandiyarajan (A-4) and
189th day for Allah Pitchai(A-6). Crl.M.P.No.240/2024 filed by the NCB
on 05/01/2024 was taken on file on 09/01/2024 and order passed without
affording opportunity. Relying on the Supreme Court Judgment in Jigar
@ Jimmy Pravinchandra Aditya –vs- State of Gujarat in Crl.A No:
1656/2022 arising out of SLP (cri) No: 7696 of 2021 dated 23/09/2023,
reported in [2022 SCC OnLine 1290], it is contended on behalf of the
petitioners that the Special Court ought not to have extended the time for
filing final report, but should have dismissed it and allowed the statutory
bail petition.
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
13. In Crl.O.P.No.13637/2024 by Pandiyarajaan and Crl.O.P.
No.13643/2024 by Allah Pitchai, the order passed in
Crl.M.P.No.240/2024, dated 12/012024 is challenged on the ground that,
no specific reason given by the Public Prosecutor for extension of time
other than that, “efforts are underway to trace the whereabouts of the
absconding accused Pounpandi”. This is not a sufficient reason to extend
the time and not in compliance to the dictum laid down by the Hon'ble
Supreme Court in Sanjay Kumar Kedia @ Sanjay Kedia –vs-
Intelligence Officer, NCB and another. It is contended that, the petition
for extension of time allowed without the presence of the petitioners and
also without giving a fair chance to contest the same and it is against the
principle laid in Jigar @ Jimmy Pravindchdra Aditya case and followed
by Co-ordinate Bench of this Court in Mohammed Zoha –vs- State, rep.
By its Inspector of Police, Pallikaranai in Crl.R.C.No: 671/2023.
14. The Learned Special Public Prosecutor for NCB submitted
that the dictum laid in the judgments relied by the petitioners are not
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
violated in this case. By distorting the facts, these petitions are filed with
oblique motive. The 4th accused Pandiyarajan was arrested on
26/07/2023 and the 6th accused Allah Pitchai was arrested on
28/07/2023. The petition for extension of time was filed on 05/01/2024
assigning reasons. The petitioners refused to receive the copy of the
petition, when it was served through the Prison authority. On all the
hearing dates, they were produced through VC and their counsels were
physically present in the Court at the time of hearing. The petition for
default bail was filed on 05/02/2024, after the extension of time granted
on 12/01/2024. Therefore, the dictum laid in Judgebir Singh @ Jasbir
Singh cited supra or the judgment in Jigar @ Jimmy Pravindchandra
Aditya cited supra have no relevance to the facts of this case.
15. A detailed counter and additional counter filed stating the
material against these petitioners, which incriminates them in the
trafficking of 432.700 kg of ganja from Vizag to Chennai and their
attempt for onward transportation to Srilanka through Rameshwaram.
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16. Perusal of the records indicate that Pandiyarajan (A-4) was
arrested on 26/07/2023 and Allah Pitchai (A-6) was arrested on
28/07/2023. Their earlier petition for regular bail was dismissed and the
second petition seeking statutory bail was filed by these two petitioners
along with other accused under Section 167(2) of Cr.P.C . This petition
numbered as Crl.M.P.No.1197/2024 was filed on 05/02/2024 in filing
No:1354/2024. The first hearing date was 06/02/2024. After hearing the
learned counsel for the petitioners and the Public Prosecutor for NCB,
the petition for statutory bail was dismissed on 20/02/2024.
17. Much prior to filing of the statutory bail petition, the IO,
NCB had filed petition under Section 36 A (4) of NDPS Act for extension
of time. Records indicates that this petition was filed on 05/01/2024 in
filing No: 248/24. The first hearing date of this petition was 09/01/2024.
After contest, it was allowed on 12/01/2024.
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18. Therefore, it is very obvious, that the petition for extension
of time was filed much before expiry of 180 days and order was passed
on 12/01/2024 long before filing of the petition seeking bail on default.
After voluntary refusal to receive the copy of the petition, the petitioners
feign ignorance of the order passed in Crl.M.P.No.240/24 and had filed
petition seeking statutory bail. The Special Court has extended the time
to file report after being satisfied with the reasons. In suppression of
these facts with distorted version, the petitioners are before this Court.
19. This Court opines that it is necessary to place on record the
relevant portion of the Special Judge order in Crl.M.P.No.240/2024,
dated 12/01/2024 to prevent any future attempt by the petitioners to
distort the facts.
“3.Heard. Entire records perused. From the overall
perusal of records. A1 to A5 were arrested for having illegal
possession of 432.700 kgs of ganja and were remanded to
judicial custody on 27.07.2023. The said contraband was
seized by the respondent. The contraband and other properties
were also seized from the accused persons by the respondent.
The contraband and other properties were also produced before
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
this Court in A.No.1056 of 2023 and B.No.699/2023
respectively. The samples were also sent to Lab for analysis
and the other properties were also returned to the petitioner for
safe custody. On the basis of statement of co-accused, A6 was
subsequently arrested and remanded to judicial custody. The
learned Special Public Prosecutor had submitted that the
detailed financial investigation against all the accused are to be
ascertained and the incriminating documents are to be collected
and other associates are to be apprehended and a person
belongs from Andhra Pradesh, who has been named as the main
supplier arranged the seized drug in this case is to be traced and
arrested. The seized contraband is of commercial quantity. The
investigation of this case is not yet completed. Under such
circumstances, the learned Special Public Prosecutor had filed
the present petition u/s 36A(4) of the NDPS Act for extension
of further 6 months time for completing the investigation of this
case. This petition has filed before this Court on 05.01.2024 i.e
162nd day within the statutory period. The accused persons had
refused to receive the notices. As the petition has been filed
within the statutory period along with proper report stating the
progress of investigation, this Court has to give sufficient
opportunity to investigate the matter in a proper manner. As per
Section 36A(4) of the NDPS Act, “.........PROVIDED that, if it
is not possible to complete the investigation within the said
period of one hundred and eight days, the Special Court may
extend the said period up to one year on the receipt of the
Public Prosecutor indicating the progress of the investigation
and the specific reasons for the detention of the accused beyond
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the said period of one hundred and eighty days.” In this case,
the seized contraband of 432.700 kgs of ganja is of commercial
quantity. The plea of the prosecution is convincing and the
prosecution is not expected to detail each and every aspect of
the progress of the case and certainly not for the accused to
know it all. Of course it is expected that the prosecution agency
will speed up the investigation. Considering the facts and
circumstances of the case, the request of the prosecution is tobe
conceded and thus the time is extended for completion of
investigation for further period of six months.”
20. Similarly, in their petition for statutory bail filed in
Crl.M.P.No.1197/2024, the Learned Special Judge has recorded in para 3
and 4 as below:-
“3.Reply received. The learned Special Public
Prosecutor had contended that in the above case, the petition
u/s 36A(4) of the NDPs Act has filed in Crl.M.P.No.240 of
2024 for further extension of statutory period for investigation
and the same was allowed on 12.01.2024 and the time was
extended for completion of investigation for further period of
six months and objected for granting bail.
4.From the over all perusal of records, A1 to A5
were arrested for having illegal possession of 432.700 kgs of
ganja and were remanded to judicial custody on 27.07.2023.
The said contraband was seized by the respondent. The
contraband and other properties were also produced before this
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
Court in A.No.1056/2023 and B.No.699/2023 respectively.
The samples were also sent to Lab for analysis and the other
properties were also returned to the petitioner for safe custody.
On the basis of statement of co-accused, A6 was subsequently
arrested and remanded to judicial custody. The learned
Special Public Prosecutor had submitted that the detailed
financial investigation against all the acused are to be
ascertained and the incriminating documents are tobe collected
and other associates are to be apprehended and a person
belongs from Andhra Pradesh, who has been named as the
main supplier arranged the seized drug in this case is to be
traced and arrested. The seized contraband is of commercial
quantity. The investigation of this case is not yet completed.
The present petition has been filed by the petitioners/accused
A1 to A6 u/s 167(2) of Cr.P.C seeking mandatory bail on the
ground that the respondent police have not completed the
investigation and have also not filed the charge sheet within
the statutory period. Before that, the respondent/complainant
had already filed a petition u/s 36A(4) of NDPS Act for
extension of time for six months for completion of
investigation in Crl.M.P.No.240/2024 on 05.01.2024 i.e. 162nd
day within the statutory period and the period of investigation
has been extended by this Court for completion of
investigation for further period of six months in
Crl.M.P.No.240/2024 on 12.01.2024. At this juncture, the
present petition which is filed u/s 167(2) of Cr.P.C., is liable to
be dismissed.”
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
21. Reverting to the judgments relied by the petitioners
counsel, this Court on reading those judgments without any doubt hold
that these judgment does not apply to the facts of the case in hand.
22. In Jigar @ Jimmy Pravinchandra case, the Hon’ble
Supreme Court while discussing the effect of not filing the report within
the time prescribed under Section 167(2) of the CrPC and the effect of
the failure of the respondents to produce the accused before the Special
Court at the time of consideration of the petition for extension of time,
the Hon’ble Supreme Court recorded that the petition for extension of
time on the report of the Public Prosecutor was passed by the Special
Court on the very same the report submitted. Further, the order extending
the period of investigation was passed without the accused being
produced physically or virtually. Since the accused had no notice for
extension of time granted by the Court, the Hon’ble Supreme Court held
that the order of the Special Court extending time is illegal.
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23. Whereas in the case in hand, the petitioners had refused to
receive the copy of the petition and had stated that they will not receive it
without their Advocate advice. On the dates of hearing, they were
produced through VC from the Prison.
24. In Judgebir Singh @ Samra @ Jasbir and others –vs- NIA
cited supra, the Hon’ble Supreme Court referring Jigar @ Jimmy case
has held as below:-
AN EYE-OPENER LITIGATION FOR THE
NIA/STATE POLICE
76. As is evident from the chronology of
dates and events referred to in the earlier part of our
judgment, the final report under Section 173(2) of the
CrPC was filed in the Court of SDJM, Ajnala on
15.11.2019. 15.11.2019 was the 161st day from the date
of arrest of two of the appellants before us, namely,
Jasbir Singh and Varinder Singh. They were the first to
be arrested on 08.06.2019. The Punjab Police applied
to the Court of the Additional Sessions Judge, Amritsar,
for extension of time to complete the investigation
invoking the proviso to Section 43D(2)(b) of the UAPA
on 04.09.2019. When this application for extension of
time was filed only two days were left for 90 days to
expire. This is suggestive of the fact that the 91st day
would have fallen on 07.09.2019. What is important to
highlight is that the Additional Sessions Judge,
Amritsar, looked into the extension application dated
04.09.2019 filed by the Punjab Police and ultimately,
extended the time limit vide its order dated 17.09.2019
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
i.e., on the 101st day. By the time, the Additional
Sessions Judge, Amritsar, passed an order extending the
time, the period of 90 days had already expired.
Indisputably, there was no charge sheet before the
Court on the 91st day i.e., on 07.09.2019. The reason
why we say that this is a grey area is because what
would have happened if the appellants Jasbir Singh and
Varinder Singh had preferred an application seeking
statutory/default bail under Section 167(2) of the CrPC
on the 91st day i.e., on 07.09.2019. The application
seeking extension of time was very much pending. The
Additional Sessions Judge could not have even allowed
such application promptly i.e., on or before the 90th day
without giving notice to the accused persons. The law is
now well settled in view of the decision of this Court in
the case of Jigar alias Jimmy Pravinchandra Aditya v.
State of Gujaratreported in 2022 SCC OnLine SC 1290
that an opportunity of hearing has to be given to the
accused persons before the time is extended up to 180
days to complete the investigation. The only error or
lapse on the part of the appellants Jasbir and Varinder
Singh was that they failed to prefer an appropriate
application seeking statutory/default bail on the 91st
day. If such application would have been filed, the court
would have had no option but to release them on
statutory/default bail. The Court could not have said
that since the extension application was pending, it
shall pass an appropriate order only after the extension
application was decided. That again would have been
something contrary to the well settled position of law.
This litigation is an eye opener for the NIA as well as
the State investigating agency that if they want to seek
extension, they must be careful that such extension is
not prayed for at the last moment.
77. The right to be released on default bail
continues to remain enforceable if the accused has
applied for such bail, notwithstanding pendency of the
bail application or subsequent filing of the chargesheet
or a report seeking extension of time by the prosecution
before the court. However, where the accused fails to
apply for default bail when the right accrues to him,
and subsequently a chargesheet, or a report seeking
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extension of time is preferred before the Magistrate or
any other competent court, the right to default bail
would be extinguished. The court would be at liberty to
take cognizance of the case or grant further time for
completion of the investigation, as the case may be,
though the accused may still be released on bail under
other provisions of the CrPC”.
25. The facts of the case in hand:
(i)The petition for extension of time filed on 05/01/2024,
which was the 165th day.
(ii)The order extending time to complete the investigation
within 6 months was passed on 12/01/2024 (i.e) before the expiry of 180
days.
(iii)The report has been filed on 03/07/2024 before the expiry
of the extended period.
(iv)The petition for bail under section 167(2) Cr.P.C. filed only
on 05/02/2024, after the time was extended under Section 36 A (4) of
NDPS Act.
26. Thus, on the date of filing the petition for statutory bail, the
ground for seeking bail on default was not in existence. Unlike the facts
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in Judgebir Singh case, in the case in hand, the prosecution has not
sought for extension of time at the last moment. In fact, they have filed
petition well in advance taking note of the word of caution given by the
Hon'ble Supreme Court in Judgebir Singh case and obtained order of
extension of time well before expiry of 180 days.
27. The petitioners consciously and deliberately refuse to
receive notice in the extension petition. Thereafter, to get statutory bail,
suppressing the fact that they attended the Court through VC, filed
petition for bail. The Learned Special Judge has deligently perused the
records and had passed the order assigning reasons.
28. For the reasons stated above, these Criminal Original
Petitions are dismissed as devoid of merit.
05.08.2024
Index:yes
Speaking order/non speaking order
Neutral citation:yes/no
ari
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
To:
1.The Principal Special Judge under EC & NDPS Act, Chennai.
2.The Intelligence Officer, NCB, Chennai.
3.The Special Public Prosecutor, NCB Cases, High Court, Madras.
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Crl.O.P.Nos.13636, 13637, 13641 & 13643 of 2024
Dr.G.JAYACHANDRAN,J.
ari
delivery Common Order made in
Crl.O.P.Nos.13636, 13637,
13641 & 13643 of 2024
05.08.2024
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