Madras High Court

Nandhakumar vs State Rep. By on 4 March, 2024

Author: M.Nirmal Kumar

Bench: M.Nirmal Kumar

                                                                                     Crl.R.C.No.328 of 2024


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 04.03.2024

                                                           CORAM

                              THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                                Crl.R.C.No.328 of 2024

                Nandhakumar                                                    ... Petitioner
                                                            Vs.
                State Rep. By
                The Inspector of Police,
                PEW-Gummidipoondi Police Station,
                Tiruvallur.                                                    ... Respondent

                PRAYER: Criminal Revision is filed under Section 397 r/w 401 of the Code of
                Criminal Procedure, to call for the records on the file of the Principal Special
                Court under EC & NDPS Act, Chennai in Crl.M.P.No.559 of 2024 in
                Cr.No.300 of 2023 on the file of the respondent Police dated 13.02.2024 and
                set aside the order, dated 13.02.2024.

                                    For Petitioner     :     Mr.S.Senthilvel
                                    For Respondent     :     Mr.S.Raja Kumar,
                                                             Additional Public Prosecutor

                                                           ORDER

The petitioner/A2 has filed a statutory bail in Crl.M.P.No.559 of 2024 in

Crime No.300 of 2023 before the learned Principal Special Judge, Principal

Special Court Under EC & NDPS Act, Chennai. The learned Judge vide order,

dated 13.02.2024 dismissed the same, against which, the present Criminal

Revision Case.

https://www.mhc.tn.gov.in/judis

2.The learned counsel for the petitioner submitted that the respondent

Police registered a case against A1, A2/petitioner and A3 for offence under

Sections 8(c), 20(b)(ii)(C), 29(1) and 25 of The Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') in

Crime No.300 of 2023. Since the investigation not completed and charge sheet

not filed, the petitioner on 186th day filed statutory bail under Section 167(2)

Cr.P.C., on 12.01.2024. Earlier to it, the respondent Police filed a petition

under Section 36-A(4) of NDPS Act on 176th day i.e., on 08.01.2024 seeking

extension of statutory period of investigation for further 180 days. The

respondent Police filed a petition seeking extension of time in Crl.M.P.No.412

of 2024 on 08.01.2024. The Court below on 08.02.2024 allowed the petition

filed by the prosecution seeking extension of time for investigation and on

13.02.2024 dismissed the petition filed by the petitioner for statutory bail

under Section 167(2) Cr.P.C. The learned counsel further submitted that in

view of the decision of Hon'ble Apex Court in the case of “M.Ravindran

Versus Intelligence Officer, Directorate of Revenue Intelligence reported in

(2021) 2 Supreme Court Cases 485” and this Court in “Ajith Versus State

Rep. by The Inspector of Police, E-9, Thazhambur Police Station, Chennai-

600130 in Crl.R.C.No.924 of 2023, dated 22.06.2023” followed the

https://www.mhc.tn.gov.in/judis

“Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors., Versus National

Investigating Agency in Criminal Appeal No.1011 of 2023” the impugned

order passed by the Court below is not legally sustainable.

3.The learned Additional Public Prosecutor appearing for the respondent

Police filed counter and submitted that on 17.07.2023, at about 04.00 hours,

when the Sub Inspector of Police was in station, he received secret information

about the illegal transportation of narcotic substance and entered the same in

the general diary. After getting permission from the Inspector of Police, the

Sub Inspector of Police along with two Grade-I Police Constables went to the

scene of occurrence wherein the team while checking the vehicles, on seeking

the Police, three persons escaped from the white Volks Wagan car bearing

registration No.TN 54 E 1235. Immediately, the Police team secured the said

persons and they disclosed their identify as Vasanth/A1,

Nandakumar/A2/petitioner and Saran/A3. On search, the accused were in

possession of 21 kgs of ganja and recorded their confession statements from

them and also seized the case properties under the cover of seizure mahazar in

the presence of witnesses. The confession statement reveals that the accused

persons purchased ganja from Arakku at Andhra Pradesh and the same given

https://www.mhc.tn.gov.in/judis

to one Ajithkumar/A4 at Coimbatore. Thereafter, the respondent Police

registered FIR in Crime No.300 of 2023 for offence under Sections 8(c),

20(b)(ii)(C), 29(1) and 25 of NDPS Act against the accused and produced

them before the concerned Magistrate for remand. Then, the samples of

contraband sent to the Forensic Lab, Chennai for chemical analysis and the

report received on 11.10.2023.

4.He further submitted that the charge sheet ought to be filed before the

concerned court within 180 days. On 08.01.2024 i.e., 176th day, the learned

Special Public Prosecutor filed extension application of statutory period of

investigation under Section 36-4(A) of NDPS Act before the learned Principal

Special Judge, Special Court under EC & NDPS Act, Chennai in

Crl.M.P.No.413 of 2024. The petitioner on 18.01.2024 i.e., 186th day filed

statutory bail in Crl.M.P.No.559 of 2024. The learned Principal Special Judge,

Principal Special Court Under EC & NDPS Act, Chennai by order, dated

13.02.2024 dismissed the statutory bail and allowed the extension petition

filed by the respondent Police on 08.02.2024. Hence, prays for dismissal of

the Criminal Revision Case.

5.This Court considered the rival submissions and perused the materials

https://www.mhc.tn.gov.in/judis

available on record.

6.The Hon'ble Apex Court in the case of “M.Ravindran Versus

Intelligence Officer, Directorate of Revenue Intelligence reported in (2021)

2 Supreme Court Cases 485” had held in detail about the Fundamental Fight

to Life and Personal Liberty under Section 167(2) Cr.P.C., commonly referred

as default bail and rights of the Prosecutor under Section 167(2) Cr.P.C., r/w

Section 36-A(4) of NDPS Act referring to various judgments of the Apex Court

considering pari materia Section 20(4)(bb) of The Terrorist and Disruptive

Activities (Prevention) Act, 1987, Section 43D (2)(b) of The Unlawful

Activities (Prevention) Act, 1967 and 49(2)(b) of The Prevention of Terrorism

Act, 2002.

(i)The Hon'ble Apex Court further held that unless the Court grants

extension in time based on the report of the Public Prosecutor, there is no

reason by the Special Court to deny to the accused his indefeasible right to

default bail if the accused seeks and is prepared to furnish the bail bonds as

directed by the Court.

(ii)It had also held that the default bail cannot be denied on account of

https://www.mhc.tn.gov.in/judis

delay in deciding his application or erroneous rejection of the same.

(iii)Further held that irrespective of the reasons for delay in deciding the

bail application, the accused is deemed to have exercised his indefeasible right

upon filing of the bail application, though his actual release from custody is

inevitably subject to compliance with the order granting bail.

(iv)Further held that no extension shall be granted by the court without

notice to an accused to have his say regarding the prayer for grant of

extension.

(v)The application for default bail by the accused and any application

for extension of time made by the Public Prosecutor must be considered

together are, in our opinion, only applicable in situations where the Public

Prosecutor files a report seeking extension of time prior to the filing of the

application for default bail by the accused. However, where the accused has

already applied for default bail, the Prosecutor cannot defeat the enforcement

of his indefeasible right by subsequently filing a final report, additional

complaint or report seeking extension of time.

(vi)It had referred to the settled principles that issuance of notice to the

State on the application for default bail filed under the Proviso to Section

167(2) Cr.P.C., is to the limited extend that the Public Prosecutor can satisfy

https://www.mhc.tn.gov.in/judis

the Court that the prosecution has already obtained an order of extension of

time from the Court; or that the challan has been filed in the designated Court

before the expiry of the prescribed period; or that the prescribed period has

actually not expired. Such issuance of notice would avoid the possibility of the

accused obtaining default bail by deliberate or inadvertent suppression of

certain facts and also guard against multiplicity of proceedings.

(vii)It is clearly held that Public Prosecutors cannot be permitted to

misuse the limited notice issued to them by the Court on bail applications filed

under Section 167(2) Cr.P.C., by dragging on proceedings and filing

subsequent applications/reports for the purpose of ‘buying extra time’ and

facilitating filling up of lacunae in the investigation by the investigating agency.

The Apex Court cautioned the lower Court that if the Court deliberately does

not decide the bail application but adjourns the case by granting time to the

prosecution, it would be in violation of the legislative mandate.

(viii)Further deprecated the practice of the concerned Magistrate to take

up the applications for extension of time with retrospective effect and

considering the default bail under Section 167(2) Cr.P.C., is not proper.

Further, it had reiterated the principle that the right of the accused to statutory

bail, which was exercised at the time his bail application was filed, remained

https://www.mhc.tn.gov.in/judis

unaffected by the subsequent application for extension of time to complete

investigation.

(ix)Further held that the concerned Magistrate was obligated to deal

with the application for default bail on the day it was filed. Default bail, being

an indefeasible right of the accused under the first proviso to Section 167(2),

kicks in and must be granted. Thus, “If the accused applies for bail under

Section 167(2), Cr.P.C read with Section 36-A (4), NDPS Act upon expiry of

180 days or the extended period, as the case may be, the Court must release

him on bail forthwith without any unnecessary delay after getting necessary

information from the public prosecutor for the limited purpose as stated

above. Thus, such prompt action will restrict the prosecution from

frustrating the legislative mandate to release the accused on bail in case of

default by the investigative agency.”

(x)Further, it had held that 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

charge sheet or a report seeking extension of time by the prosecution before the

Court; or filing of the charge sheet during the interregnum when challenge to

the rejection of the bail application is pending before a higher Court.

https://www.mhc.tn.gov.in/judis

7.In the case of “Judgebir Singh @ Jasbir Singh Samra @ Jasbir &

Ors., Versus National Investigating Agency in Criminal Appeal No.1011 of

2023” the Hon'ble Apex Court in paragraph Nos.76 to 78 had held as follows:

“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 i.e., on the 101st day. By the time, the

https://www.mhc.tn.gov.in/judis

Additional Sessions Judge, Amritsar, passed an order extending the time, the period of 90 days had already expired.

Indisputably, there was no chargesheet 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 Gujarat reported 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

https://www.mhc.tn.gov.in/judis

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 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.

78. Our observations in paras 76 and 77 respectively as above are keeping in mind the decision of this Court rendered by a three-Judge Bench in the case of Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and Others reported in (2012) 12 SCC 1, wherein in paras 25, 26 and 27 respectively, this Court observed as under:

https://www.mhc.tn.gov.in/judis

“25. Having carefully considered the submissions made on behalf of the respective parties, the relevant provisions of law and the decision cited, we are unable to accept the submissions advanced on behalf of the State by the learned Additional Solicitor General Mr Raval. There is no denying the fact that on 17-7-2012, when CR No. 86 of 2012 was allowed by the Additional Sessions Judge and the custody of the appellant was held to be illegal and an application under Section 167(2) CrPC was made on behalf of the appellant for grant of statutory bail which was listed for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same till the next day when the Public Prosecutor filed an application for extension of the period of custody and investigation and on 20-7- 2012 extended the time of investigation and the custody of the appellant for a further period of 90 days with retrospective effect from 2-6-2012. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into custody. Such right, as has been commented upon by this Court in Sanjay Dutt [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] and the other cases cited by the learned Additional Solicitor General, could only be distinguished (sic extinguished) once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well- established that if an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail.

https://www.mhc.tn.gov.in/judis

26. The circumstances in this case, however, are different in that the appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon.

27. We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which has been endorsed by the High Court and we are of the view that the appellant acquired the right for grant of statutory bail on 17-7-2012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail was pending at the time when the application for extension of time for continuing the investigation was filed by the prosecution. In our view, the right of the appellant to grant of statutory bail remained unaffected by the subsequent application and both the Chief Metropolitan Magistrate and the High Court erred in holding otherwise.” (Emphasis supplied)

8.This Court in the case of “Ajith Versus State Rep. by The Inspector

of Police, E-9, Thazhambur Police Station, Chennai-600130 in

Crl.R.C.No.924 of 2023, dated 22.06.2023” following the Hon'ble Apex Court

decisions had granted statutory bail finding that the Court below considered

the bail application as well as extension petition belatedly but simultaneously.

This order (Ajith case) came to be passed on 22.06.2023, the Court below

https://www.mhc.tn.gov.in/judis

failed to make correction course, continuous to belatedly take into

consideration in passing order in extension petition and statutory bail

application. Despite extension petition filed by the investigating agency before

expiry of the statutory period, no order passed, kept pending for quite some

time. In the meanwhile, indefeasible right for statutory bail accrues to the

accused. The Court below dismissing the statutory bail on the ground that

extension petition has been filed and both orders passed on the same day is not

proper. Filing of charge sheet before the statutory period is sufficient and any

claim for default bail as statutory right is not permissible. On the other hand,

the dictum of the Hon'ble Apex Court is clear that once extension petition filed,

notice to be given to the accused and thereafter, considering Section 36-A(4) of

NDPS Act and the twin conditions that (i)indicating the progress of the

investigation (ii)specific reason for the detention of the accused beyond the

said period of one hundred and eighty days, orders to be passed. Then, only it

can be construed that the extension period for filing charge sheet has been

granted, otherwise filing of extension petition alone by the prosecution would

not amount to compliance of the condition in the absence of the order by the

Magistrate/Special Judge stipulated under Section 36-A(4) of NDPS Act. For

better appreciation, Section 36-A(4) of NDPS Act is extracted below:

https://www.mhc.tn.gov.in/judis

“(4)In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub- section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days.

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.”

9.It is clear that on date of petition for default bail by the petitioner,

neither charge sheet filed nor order for extension of time to complete the

investigation granted/ordered. In the meanwhile, the indefeasible right to

default bail under Section 167(2) Cr.P.C., an integral part of right to personal

liberty under Article 21 of Constitution of India accrued to the accused, cannot

be denied.

https://www.mhc.tn.gov.in/judis

10.In view of the callous manner of the Court below in belatedly

considering and passing orders in the extension petition filed by the Public

Prosecutor under Section 36-A(4) of NDPS Act, the accused cannot be denied

his accrued right of default bail.

11.In view of the foregoing discussions, the impugned order dated

13.02.2024 passed in Crl.M.P.No.559 of 2024 in Crime No.300 of 2023 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.10,000/- (Rupees Ten Thousand only) along with two sureties each for a

like sum, before the Principal Special Judge, Principal Special Court under EC

& NDPS Act, 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;

(c) the petitioner to appear before the respondent Police on the first

https://www.mhc.tn.gov.in/judis

working day of every English calender 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 petitioners 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;