Madras High Court
G.Sivaprakash vs State Represented By on 3 September, 2024
Crl.R.C.(MD)No.777 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 21.08.2024
Pronounced on : 03.09.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.777 of 2024
G.Sivaprakash ... Petitioner
Vs.
State represented by,
Inspector of Police,
NIB CID
Thoothukudi District.
(Crime No.02 of 2024) ... Respondent
Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442
B.N.S.S., to call for the records pertaining to the impugned order in
Cr.M.P.No.1529 of 2024 dated 18.06.2024 passed by the learned Principal
Special Court for EC and NDPS Act Cases, Madurai and to set aside the
same as illegal and grant statutory bail to the petitioner.
For Petitioner : Mr.G.Karuppasamy Pandiyan
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Government Pleader
1/22
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.777 of 2024
ORDER
The Criminal Revision is directed against the order passed in
Crl.M.P.No.1529 of 2024 dated 18.06.2024 on the file of the Principal
Special Court for EC and NDPS Act Cases, Madurai, dismissing the
petition filed for statutory bail under Section 167(2) of the Code of
Criminal Procedure.
2. The petitioner is the second accused in Crime No.2 of 2024 for
the alleged offences under Sections 8(c) r/w 20(b)(ii)(C), 25 and 29(1) of
NDPS Act on the file of the respondent police.
3. The case of the prosecution is that on 11.12.2023 at about 15.00
hours, the Inspector of Police, Soorankudi Police Station received a secret
information and intercepted a Innova car bearing Registration No.TN-50-
D-2896 near Kadal Karai area of Muthaiyapuram and found 12 bags
containing 529 kgs of ganja and that the Innova car along with contraband
and four cell phones came to be seized and after recording the confession
statement, the petitioner and other accused were arrested.
https://www.mhc.tn.gov.in/judis
4. The case of the petitioner is that the respondent police has not
followed the mandatory requirements contemplated under Sections 42, 50,
52(A) and 57 of NDPS Act, that the respondent police has not completed
the investigation and charge sheet is not yet filed and that since the
petitioner was remanded on 12.12.2023 and since he is in judicial custody
for the past 181 days, he is entitled to get statutory bail as contemplated
under Section 167(2) Cr.P.C.
5. It is evident from the records that the first accused has also filed a
similar petition in Crl.M.P.No.1528 of 2024 under Section 167(2) Cr.P.C.
claiming statutory bail. Meanwhile, the respondent police has also filed a
petition in Crl.M.P.No.1390 of 2024 seeking extension of time under
Section 36A(4) of NDPS Act. The learned Special Judge, after conducting
enquiry in all the petitions, has passed a common order dated 18.06.2024
dismissing the petitions for statutory bail and allowed the time extension
petition and thereby extended period by three months for completing the
investigation from the date of that order. Aggrieved by the dismissal of the
petition for statutory bail, the second accused has preferred the present
revision.
https://www.mhc.tn.gov.in/judis
6. The learned counsel appearing for the petitioner would submit
that since the respondent police has failed to file any final report even after
the expiry of 180 days from the date of remand, the petitioner is entitled to
get statutory bail under Section 167(2) Cr.P.C., that the trial Court failed to
follow the settled legal position as regards the grant of statutory bail in a
case of NDPS Act, that the order allowing extension of time at the request
of the investigation officer per se is illegal as there was no report from the
Public Prosecutor indicating the progress of the investigation, that the
reason given by the trial Court for dismissing the statutory bail petition
that the prosecution has already filed a petition for extension of time,
cannot legally be sustained, that the trial Court has failed to note that there
was no final report nor order of extension of time as on 10.06.2024 when
the petition for statutory bail was filed, that the trial Court has disposed of
the statutory bail petition after the lapse of 8 days contrary to the legal
position that such petition should be disposed of immediately with least
delay and that simultaneous disposal of the bail petition and the petition
seeking extension of time filed by the investigation officer much belatedly
is unknown to criminal law and the impugned order directly runs contrary
to the personal liberty of the person envisaged in Article 21 of the
https://www.mhc.tn.gov.in/judis
Constitution of India.
7. The learned Additional Public Prosecutor appearing for the
respondent would submit that the respondent police has filed the extension
petition with proper and sufficient reasons, that since investigation was
pending, they were not able to file charge sheet within 09.06.2024 i.e., on
180th day and hence, extension petition was filed on 27.05.2024 i.e., on
167th day, that notice was served on the accused and after entering into
appearance, the accused side sought time for filing counter, that the first
accused and the petitioner have filed their counters only on 07.06.2024
and 11.06.2024 respectively, that the trial Court has taken two bail
petitions and extension petition jointly for enquiry and passed the common
order dated 18.06.2024 and as such, the procedure adopted by the learned
trial Judge cannot be found fault with, that the learned trial Judge, by
observing that though the extension petition was filed on 167th day itself,
the accused had taken time for filing counter and filed the counter only on
11.06.2024 one day after filing of the statutory bail petition, has rightly
dismissed the bail petitions and that therefore the revision is devoid of
merit and the same is liable to be dismissed.
https://www.mhc.tn.gov.in/judis
8. Considering the case putforth by both the parties and on perusal
of the records, the facts not in dispute are that the petitioner was arrested
on 11.12.2023 and was remanded to judicial custody on 12.12.2023, that
the respondent police has filed the petition in Crl.M.P.No.1390 of 2024
seeking extension of time for completing the investigation on 27.05.2024
(167th day from the date of remand), that the petitioner has filed his
counter to the extension petition on 11.06.2024, that the petitioner has
filed the statutory bail petition on 10.06.2024 and that the learned trial
Judge has passed the impugned common order on 18.06.2024.
9. The learned counsel appearing for the petitioner would mainly
contend that since the petitioner has filed the statutory bail petition only
on 181st day and since the respondent police has not filed charge sheet nor
obtained any order for extension of time, the trial Court has absolutely no
power or jurisdiction to dismiss the statutory bail petition on the ground
that extension petition was pending at that time.
10. The learned counsel appearing for the petitioner would rely on
the decision of Kerala High Court in the case of Riyas @ Puli Riyas Vs.
https://www.mhc.tn.gov.in/judis
State of Kerala and others in Crl.M.C.No.4414 of 2024 dated
28.06.2024, wherein, an application for extension of detention of the
petitioner was filed on 06.04.2024 and it was pending consideration on the
181st day as no orders were issued and that in the meantime, the petitioner
had filed an application for statutory bail and both applications were
considered together and orders were issued on 04.05.2024 extending the
time for completing investigation by a further period of two months from
14.04.2024, thereby extending the detention as well. The learned Judge of
Kerala High Court, by referring to an earlier decision of Kerala High
Court, has held that the order granting extension of time having been
issued after the 181st day, the petitioner's indefeasible right for statutory
bail became crystalised and he ought to have been released on bail and his
detention ought not to have been extended and set aside the dismissal
order and directed to release the petitioner on statutory bail.
11. The learned counsel appearing for the petitioner would also rely
on the decision of this Court in Venkatachalapathi Vs. State, rep. by
Inspector of Police, PEW Gummidipoondi Unit, Tiruvallur in
Crl.R.C.No.441 of 2024 dated 26.03.2024, wherein, the petitioner filed a
https://www.mhc.tn.gov.in/judis
statutory bail petition on 23.01.2024, that the respondent police filed a
petition under Section 36A(4) of NDPS Act on 177th day i.e., on
11.01.2024 and that the Court allowed the extension petition and
dismissed the bail petition on 23.02.2024 and when the said order was
challenged, a learned Judge of this Court, by referring to the decisions of
the Hon'ble Supreme Court and the High Court, has held as follows:-
“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 23.02.2024 passed in Crl.M.P.No.
787 of 2024 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 ...”
https://www.mhc.tn.gov.in/judis
12. With great respect to the learned Judges above referred, the
Hon'ble Supreme Court has reiterated the settled legal position that a right
to statutory bail stands extinguished once the report of the Public
Prosecutor seeking extension is filed and that 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. At this juncture,
it is necessary to refer the judgment of the Hon'ble Supreme Court in the
case of Rambeer Shokeen Vs. State (NCT of Delhi) reported in (2018) 4
SCC 405,
''22. After having analysed the facts and events as
unfolded from 28th February, 2017 until 8th March, 2017, it
is indisputable that on 28th February, 2017, the Additional
Public Prosecutor had filed report for extension of time to
file charge-sheet against the appellant until 15th March,
2017. The same was filed within time, before the expiry of
90 days from the date of initial arrest of the appellant in
connection with the subject FIR. Realising this position,
the appellant did not pursue his first application for
statutory bail dated 28th February, 2017. Instead, he was
advised to file a fresh statutory bail application on 2nd
March, 2017. Admittedly, on 2nd March, 2017, the report
https://www.mhc.tn.gov.in/judis
submitted by the Additional Public Prosecutor dated 28th
February, 2017 was still undecided. Therefore, no right
can be said to have accrued to the appellant for grant of
bail on the ground of default. In law, only upon rejection of
the prayer for extension of time sought by the Additional
Public Prosecutor, right in favour of the appellant for
grant of statutory bail could have ignited. The mere fact
that 90 days period from the date of initial arrest of the
appellant in connection with the subject FIR had lapsed on
2nd March, 2017, could not ineluctably entail in grant of
statutory bail to the appellant. More so, when no decision
was taken by the Court on the report/application submitted
by the Additional Public Prosecutor until 8th March, 2017,
on which date the supplementary charge-sheet against the
appellant was filed in Court. Considering the effect of
filing of the supplementary charge-sheet against the
appellant, coupled with the fact that his judicial custody
was extended by the Court of competent jurisdiction until
the pendency of consideration of the report/application for
extension of time to file the charge-sheet, in law, it is
unfathomable as to how the appellant could claim to have
any accrued right to be released on bail on the ground of
default or for that matter, such a right having become
indefeasible.''
https://www.mhc.tn.gov.in/judis
13. A Full Bench of the Hon'ble Supreme Court in the case of
M.Ravindran Vs. Intelligence Officer, Directorate of Revenue
Intelligence reported in AIR 2020 SC 5245, while considering the points
as to whether the indefeasible right accruing to the accused under Section
167(2) Cr.P.C gets extinguished by subsequent filing of an additional
complaint by the investigating agency, after referring to the various
decisions on the subject, has concluded as follows:
“18. Therefore, in conclusion:
18.1 Once the accused files an application for bail
under the Proviso to Section 167(2) he is deemed to have
‘availed of’ or enforced his right to be released on default
bail, accruing after expiry of the stipulated time limit for
investigation. Thus, if the accused applies for bail under
Section 167(2)Cr.P.C read with Section 36 A, 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, as mentioned
supra. 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.
https://www.mhc.tn.gov.in/judis
18.2 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.
18.3 However, where the accused fails to apply for
default bail when the right accrues to him, and
subsequently a charge sheet, additional complaint or a
report seeking extension of time is preferred before the
Magistrate, the right to default bail would be extinguished.
The Magistrate 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
Cr.P.C.”
14. Following the above decisions of the Hon'ble Supreme Court, A
Hon'ble Division Bench of this Court in Kannan and S.Revathi Vs. State
rep by The Inspector of Police, Avaniyapuram Police Station, Madurai
City in H.C.P(MD)Nos.211 and 213 of 2022 dated 11.02.2022 has
https://www.mhc.tn.gov.in/judis
observed as follows:-
“15. We are unable to read the judgment in
M.Ravindran's case in the manner suggested by
Mr.K.K.Ramakrishnan. A wholesome and comprehensive
reading of paragraphs 20.1 and 20.2 of the judgment in
M.Ravindran's case, would show that the Hon'ble Supreme
Court has only reiterated the law as stated in Rambeer
Shokeen's case and it had not diluted it in any manner. The
Hon'ble Supreme Court has very clearly held that the
observations made in Hitendra Vishnu Thakur vs. State of
Maharashtra reported in (1994) 4 SCC 602 and Sanjay
Dutt vs. State reported in (1994) 5 SCC 410, could be
applied in cases where an application has been made by
the prosecution seeking extension of time before filing of
the application for default bail by the accused. They have
also made it very clear that the prosecution cannot deny
default bail to the accused by filing an application seeking
extension of time, after an application seeking default bail
had been filed by the accused persons. This is made clear
in paragraph 20.3 of the judgment in M.Ravindran's case,
where the Hon'ble Supreme Court had observed as
follows:-
''However, Public Prosecutors cannot be
permitted to misuse the limited notice issued to
them by the Court on bail applications filed under
https://www.mhc.tn.gov.in/judis
Section 167(2) 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.''
15. The legal position reiterated in the above decisions are squarely
applicable to the case on hand.
16. As already pointed out, when the petitioner has filed his
statutory bail petition, the petition filed by the prosecution for extension of
time was pending and in the absence of any orders passed in the extension
petition, the petitioner cannot claim statutory bail as of right.
17. The learned counsel appearing for the petitioner, as already
pointed out, would comment on the way in which the learned trial Judge
has disposed of both the bail petitions as well as the extension petition
jointly.
18. A Full Bench of Calcutta High Court in the case of Subhas
https://www.mhc.tn.gov.in/judis
Yadav and others Vs. State of West Bengal and others reported in 2023
SCC Online Cal 313, after elaborate discussion has answered which are as
follows:-
“31. In light of the aforesaid discussion, the issues
are answered as follows:—
1. Right of an accused to statutory bail upon expiry
of the period of detention prescribed under section 36A(4)
of NDPS Act is an inchoate one till he avails of his right by
seeking statutory bail either by way of an application or
even orally. Hence, he cannot be released automatically on
statutory bail on the mere expiry of 180 days even if the
prosecutor has failed to submit report seeking extension of
detention in terms of the proviso to section 36A(4) of the
Act before expiry of the said period;
2. Order extending the period of detention under
proviso to section 36A(4) of NDPS Act on a report of the
Public Prosecutor submitted after expiry of 180 days but
prior to the accused availing of his right does not envisage
retrospective operation but the total period of detention
under the aforesaid provision cannot exceed one year in
the whole;
3. As per Para 25.3 of M. Ravindran (supra) the
right to statutory bail stands extinguished once the report
https://www.mhc.tn.gov.in/judis
of the Public Prosecutor seeking extension is filed. Hence,
remand of the accused till the prayer of the prosecutor is
disposed of is traceable to section 167(2) Cr. P.C. read
with section 36A(4) of the NDPS Act. In the event, the
application for extension is dismissed or an order
extending detention is set aside by a superior court right to
statutory bail revives in favour of the accused;
4. Upon expiry of 180 days of detention, Special
Court as a cautionary measure ought to inform the
accused (particularly if he is from an underprivileged
section of society and is unrepresented by a counsel) of his
right to statutory bail. However, failure to intimate the
accused of his right by itself would not entitle him to
statutory bail unless he avails of such relief;
.......
7. Prayer for extension of period of detention must
be decided at the earliest without undue delay preferably
within 7 days from making such application. Reasons for
adjournment must be specifically stated; ...”
19. A learned Judge of this Court in the case of Varun and another
Vs. State rep. by the Inspector of Police, Sulur Police Station in
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.901 of 2024 dated 01.02.2024, by expressing his complete
agreement with the conclusion arrived at by the Full Bench of Calcutta
High Court, has directed the Special Courts to follow the above said
guidelines in letter and spirit and the relevant passage is extracted
hereunder:-
“24. This Court is in complete agreement with the
above conclusions arrived at by the Calcutta High Court.
The Special Courts across Tamil Nadu, shall keep the
above guidelines in mind and it shall be followed in letter
and spirit. The Special Courts must get rid of the practice
of dealing with the extension petition and the statutory bail
petition together. The scope of both these petitions are very
different and it must be keep in mind by the Special Courts.
A copy of this order shall be circulated to all the Principal
District Judges, across Tamil Nadu.”
20. With great respect to the learned Judge, the Hon'ble Apex Court
has settled the legal position that when the petition for extension of time
filed by the Prosecutor is pending, if the accused files a petition for default
bail after the expiry of the period for completion of investigation, both the
petitions have to be taken together and disposed of. At this juncture, it is
necessary to refer the judgment of the Hon'ble Supreme Court in
https://www.mhc.tn.gov.in/judis
M.Ravindran's case referred supra,
“20.1.The observations made in Hitendra Vishnu
Thakur and Sanjay Dutt to the effect that the application
for default bail 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. In such a situation,
notwithstanding the fact that the period for completion of
investigation has expired, both applications would have to
be considered together. 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.”
21. The Hon'ble Division Bench of this Court in the case of Kannan
and S.Revathi referred above, taking note of the facts that application for
extension of time was filed on 28.01.2022 and that 180 days period
expired only on 08.02.2022, has observed,
“17. ... Therefore, the cause of action for filing an
application under Section 167(2) of the Cr.P.C read with
https://www.mhc.tn.gov.in/judis
Section 36A(4) of the NDPS Act would arise only on the
expiry of the 180 days period namely, 08.02.2022.
Therefore, on the day when the application for default bail
was filed into the Court, the application filed by the
prosecution seeking extension of time in Crl.M.P.No.164 of
2022 was pending on the file of the Special Court.
Therefore, the judgment in Rambeer Shokeen's case would
directly apply and both the applications must be heard
together. May be, the learned Special Judge erred in
returning the application for default bail on the ground
that the application for extension of time is pending, but
that may not afford a ground to the petitioners to seek
immediate release of the accused persons invoking the
constitutional power of this Court under Article 226 of the
Constitution of India by way of these Habeas Corpus
Petitions.”
22. In the case on hand also, since the extension petition was
pending when the statutory bail petition was filed, the learned trial Judge
has taken both the petitions together and disposed of by common order.
Considering the legal position above referred, the way in which both the
bail petition and extension petition came to be considered together and
disposed of by common order cannot be found fault with.
https://www.mhc.tn.gov.in/judis
23. No doubt, as rightly contended by the learned counsel appearing
for the petitioner, though the extension petition was filed as early as on
26.05.2024, the same was kept pending till the expiry of 180 days and
even after filing of the statutory bail petition, the same was kept pending
till 18.06.2024. As rightly observed by the Full Bench of Calcutta High
Court, the Court is duty bound to consider the extension petition and pass
orders within a reasonable time, as held by the Calcutta High Court within
7 days from the date of filing of the extension petition. But at the same
time, just because the extension petition was kept pending till the expiry of
180 days, that by itself will not confer any right on the petitioner to get the
statutory bail. As reiterated by the Hon'ble Supreme Court, when a petition
for extension of time was pending on the date of expiry of 180 days, even
though charge sheet has not been filed and no order for extension of time
was obtained, the petitioner's right to statutory bail gets extinguished till
the rejection of the extension petition.
24. Considering the above and viewing from any angle, this Court
has no hesitation to hold that since extension petition was pending on 181 st
day when statutory bail petition came to be filed, the petitioner is not
https://www.mhc.tn.gov.in/judis
entitled to get statutory bail automatically and that the impugned order
dismissing the statutory bail petition, cannot be found fault with.
Consequently, this Court concludes that the revision is devoid of merit and
the same is liable to be dismissed.
25. In the result, this Criminal Revision Petition is dismissed.
03.09.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Principal Special Court for EC and NDPS Act Cases,
Madurai.
2.The Inspector of Police,
NIB CID
Thoothukudi District.
https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Dated : 03.09.2024
https://www.mhc.tn.gov.in/judis
