Madras High Court

Santhosh @ Kokku Santhosh vs The State Rep By Its on 5 March, 2024

Author: M.Nirmal Kumar

Bench: M. Nirmal Kumar

                                                                                      Crl.R.C.No.327 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 05.03.2024

                                                                CORAM:

                                       THE HON'BLE MR.JUSTICE M. NIRMAL KUMAR

                                                     Crl.R.C.No.327 of 2024

                     Santhosh @ Kokku Santhosh                                      ... Petitioner

                                                                 Vs.

                     The State rep by its
                     The Inspector of Police,
                     H-3, Tondiarpet Police Station,
                     Chennai.
                     (Crime No.94 of 2023)                                          ... Respondent


                     PRAYER: Criminal Revision is filed under Section 397 & 401 Cr.P.C. to

                     call for the records and set aside the order dated 29.12.2023 of the learned

                     Principal Special Court under EC and NDPS Court at Chennai in

                     Crl.M.P.No.8343 of 2023 and enlarge the petitioner on bail in Crime No.94

                     of 2023 pending on the file of the respondent.


                                        For Petitioner      :     Mr.D.Padmanabhan

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

                     Page No.1 of 20



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                                                                                       Crl.R.C.No.327 of 2024



                                                              ORDER

The petitioner has filed a statutory bail in Crl.M.P.No.8343 of 2023 in

Crime No.94 of 2023 before the learned Principal Special Judge, Principal

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

order, dated 29.12.2023 dismissed the same, against which, the present

Criminal Revision Case.

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

Police registered a case against the petitioner for offence under Sections

8(c) r/w 22(C), 29(I) of The Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as 'NDPS Act') in Crime No.94 of 2023.

The accused was arrested on 05.05.2023. Since the investigation not

completed and charge sheet not filed, the petitioner on 182nd day filed

statutory bail under Section 167(2) Cr.P.C., on 02.11.2023. Earlier to it, the

respondent Police filed a petition under Section 36-A(4) of NDPS Act on

167th day i.e., on 13.10.2023 in Crl.M.P.No.7811 of 2023 seeking extension

of statutory period of investigation for further 180 days. Notice was served

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on 06.11.2023. Finally, on 29.12.2023 a common order in both the petitions

passed allowing the extension of period of investigation in Crl.M.P.No.7811

of 2023 and dismissing the statutory bail of the petitioner in

Crl.M.P.No.8343 of 2023. 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 “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 Government Advocate [Crl. Side] appearing for the

respondent Police filed a counter and submitted that while the defacto

complainant/Sub-Inspector of Police, attached to the respondent Police

Station was on duty, at that time, he received a secret information about

illegal transport of narcotic substance, based on that, he went along with

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police team to the scene of occurrence. At that time, the petitioner came

from there suspiciously. When they saw the Police team, he tried to escape

from the spot and the respondent police secured him and conducted search

and seized 823 grams of Methamphetamine from the accused person under

seizure mahazar in presence of witnesses. Thereafter, the Inspector of

Police arrested the accused and recorded his confession statement. After

that, the arrested accused along with the seized contrabands taken to the

respondent Police station. A case was registered in Crime No.94 of 2023 for

offence under Sections 8(c) r/w 22(C), 29(I) of NDPS Act, 1985 against the

accused person and remanded them to judicial custody.

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

the concerned court within 180 days. On 13.10.2023, 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 on

167th day. On 06.11.2023, the respondent Police served summon informing

the prosecution side filed an extension application of statutory period to the

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accused and obtained an acknowledgment. Thereafter, the respondent Police

produced the acknowledgment before the Court below in Crl.M.P.No.7811

of 2023 in Crime No.94 of 2023 and the same was allowed on 29.12.2023

and extended further period of investigation. The admitted position is that

on 167th day i.e., 13.10.2023, the respondent Police filed petition under

Section 36-A(4) of NDPS Act. Notice was served to the petitioner on

06.11.2023 and thereafter, the impugned order passed on 29.12.2023 and the

petitioner filed a statutory bail petition on 182nd day i.e., on 02.11.2023. In

view of the extension petition filed earlier, the petitioner is not entitled for

any statutory bail. Hence, prays for dismissal of the Criminal Revision

Case.

5.This Court considered the rival submissions and perused the

materials 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)

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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 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.

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(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 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

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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

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

remained 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

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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.

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

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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 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

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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 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

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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:

“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

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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.

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

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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 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.

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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:

“(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

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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.

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

considering and passing orders, the accused cannot be denied his accrued

right of default bail.

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

29.12.2023 passed in Crl.M.P.No.8343 of 2023 by the learned Principal

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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 XV Metropolitan Magistrate, George Town, 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

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

petitioners in accordance with law as if the conditions have been imposed

and the petitioner released on bail by the learned Magistrate/Trial Court

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himself as laid down by the Hon-ble Supreme Court in P.K.Shaji Vs. State

of Kerala [(2005) AIR SCW 5560]; and;