Madras High Court
F.Faizal Ahamed vs / on 4 September, 2024
Author: G.Jayachandran
Bench: G. Jayachandran
Crl.O.P.Nos.18817 & 18925 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :29.08.2024
Pronounced on :04.09.2024
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
Crl.O.P.Nos.18817 & 18925 of 2024
F.Faizal Ahamed .. Petitioner/A2
in both cases
/versus/
Union Rep.by
The Intelligence Officer,
NCB, Chennai,
R.R.No.25 of 2022,
In NCB F.No.48/1/07/2022-NCB/MDS .. Respondent/
Complainant
in both cases
Crl.O.P.No.18817 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.5121 of 2022, dated 18.10.2022, on the file of the Principal
Special Judge under EC & NDPS Act, Chennai,
Crl.O.P.No.18925 of 2024: Criminal Original Petition has been filed
1/11
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Crl.O.P.Nos.18817 & 18925 of 2024
under Section 482 of Cr.P.C., to set aside the order passed in
Crl.M.P.No.6227 of 2022, dated 23.12.2022, on the file of the Principal
Special Judge under EC & NDPS Act, Chennai.
For Petitioner :Mr.M.G.Martinmanivannan(both cases)
For Respondent :Mr.N.P.Kumar,(both cases)
Spl.PP(NCB Cases)
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COMMON ORDER
The petitioner herein is the 2nd accused in C.C.No:343 of 2023,
pending on the file of the Special Court for offences under The Narcotic
Drugs and Psychotropic Substances Act (NDPS Act) of 1985 (herein after
referred to “NDPS” Act), Chennai.
2. On 23/04/2022, on prior information, the Intelligence Officer
of NCB, searched a passenger by name P.Nedunchezhian at Anna
International Airport, Chennai and 184 grams of Methamphetamine
carried in his travel bag with intention to transport to Srilanka was seized.
On his information, his associates Faizal Ahamed – A2 (the petitioner
herein) and Selvam @ Kumar (A3) were arrested on 23/04/2022. On
further interrogation, A-2 disclosed the scheme of conspiracy entered
between the accused persons to transport Methamphetamine, a
psychotropic substance and the source from which he got the seized
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Crl.O.P.Nos.18817 & 18925 of 2024
substance. Based on the information given by Faizal Ahamed (A-2), the
supplier and the international associates were ascertained. Later,
Gnanasegaran @ Gnanam (A-4) and Samaiyan (A-5) were arrested on
24/09/2022. Subsequently, the supplier by name Shahul Meera ( A-6) was
arrested and from his possession 2.168 Kg of white colour crystalline
powder believed to be Ephedrine (a control substance) was seized.
3. Since the investigation could not be completed within 180
days, the Intelligence Officer, NCB filed application under Section 36 A
of the NDPS Act for extension of time to file the final report. The said
application Crl.M.P.No.5121/2022 was allowed by the Special Court on
18/10/2022. Later, on 23/12/2022, bail petition was filed by the petitioner
under Section 167(2) of Cr.P.C to grant default bail. That petition in
Crl.M.P.No.6227/2022 was dismissd vide order dated 23/12/2022.
4.The order granting extension of time is challenged in
Crl.O.O.No.18817/2024. The order dismissing the bail petition is
challenged in Crl.O.P.No.18925/2024.
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Crl.O.P.Nos.18817 & 18925 of 2024
5. The learned counsel for the petitioner submitted that, the
petitioner is confined in Central Prison at Puzal. The copy of the
application filed under Section 36-A(4) of the NDPS Act, served to the
petitioner in the presence of the Jail Superintendent on 15/10/2022. The
application was heard on 18/10/2022 by the Court and on the same day,
without affording any opportunity to the petitioner to object the
application, order for extension of time passed. 15th and 16th being
Saturday and Sunday, the petitioner had no opportunity to consult his
counsel and make preparation for objecting the application.
6. Secondly, the application for extension of time does not
disclose any specific reason for extension of time. As per Section 36 A(4)
of the NDPS Act, a report of the Special Public Prosecutor indicating the
progress of the investigation has also the specific and compelling reason
for seeking the detention of the accused beyond the period of 180 days is
mandatory. Whereas, in this case without such report from Special Public
Prosecutor, the trail Court has mechanically in a routine fashion extended
the time for investigation.
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Crl.O.P.Nos.18817 & 18925 of 2024
7. Thirdly, the application for extension of time not filed before
expiry of 180 days from the date of arrest. It was filed after the expiry of
180 days. Hence, application under Section 36A(4) of NDPS Act is not at
all maintainable. Therefore, for all purpose, it has to be construed that the
prosecution failed to file the final report within 180 days, hence, the
accused is entitled for default bail under 167(2) Cr.P.C. which is an
infallible and indefeasible right of a person.
8. To buttress his submissions, the learned counsel for the
petitioner, rely upon the following Judgments of the Hon’ble Supreme
Court.
(1) Jigar @ Jimmy Pravinchandra Adatiya –vs-
State of Gujarat: 2022 SCC OnLine SC 1290.
(2) Sanjay Kumar Kedia @ Sanjay Kedia –vs-
Intelligence Officer, NCB and another in Crl.A.No.2008 &
2009 of 2008.
(3) Mohammed Zoha –vs- the State in
Crl.R.C.No.671 of 2023.
9. The Learned Counsel, submitted that, the logical and legal
consequence of the grant of extension of time is to deprive the accused to
claim the indefeasible right availing the default bail. While so, the
procedure laid cannot be a empty formality. The failure to procure the
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Crl.O.P.Nos.18817 & 18925 of 2024
presence of the accused either physically or virtually before the court and
the failure to inform him that the application made by the Public
Prosecutor for extension of time is being considered, is a gross illegality
violating Article 21 of Constitution of India.
10. Per contra, the Learned Special Public Proseuctor for NCB,
contended that it is incorrect to say that the application for extension of
time was filed after expiry of 180 days from the date of arrest of the
petitioner. The accused was arrested on 23/04/2022. The application for
extension of time was filed on 12/10/2022. The petitioner/accused was
served with the copy of the application in the presence of Jail
Superintendent on 15/10/2022. The application was first heard on
17/10/2022. The decision for extending time to complete the investigation
by 6 months was delivered on 18/10/2022 in the presence of the
accused/petitioner. After, the order of extension of time, final report filed
on 21/03/2023 and taken on file as C.C.No.343/2023.
11. Heard the submissions made by the Learned Counsel for the
Petitioner and the Learned Special Public Prosecutor for NCB.
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Crl.O.P.Nos.18817 & 18925 of 2024
12. According to the petitioner, the order of the learned Trial
Court granting extension of time is in violation of the mandatory
procedure and granted after the expiry of the 180 days period. However,
from the record this court finds that, the arrest of the petitioner was on
23/04/2022. The 180 days remand period gets expired on 22/10/2022,
whereas the application for extension of time filed on 12/10/2022, 10
days before the expiry of the period. The application been heard on
17/10/2022 and on 18/10/2022 order passed in the presence of the
accused who were produced from the prison. The order of the trial court
which is impugned in this petition indicates that, there was no objection
from the petitioner for extending the time.
13. As far as the allegation that the Spl.PP had failed to file a
report to substantiate the plea for extension of time, from the perusal of
the order, this Court finds that the Learned Judge has specifically
recorded that, one of the suspect by name Sivakumar of Padianallur, Red
Hills area who supplied the drug yet to be traced and other drug
traffickers associated with the drug seized, yet to be traced. Therefore
time required for completion of investigation. Thus, it is obviously clear
that the Learned Judge had not mechanically passed the order, but had
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Crl.O.P.Nos.18817 & 18925 of 2024
applied her mind and only on being satisfied with the reasoning submitted
by the Investigating officer through Special Public Prosecutor, had passed
the order extending time to file final report by 6 months.
14. Therefore, this Court holds that there is no infraction of the
procedure mandated under Section 36-A(4) of the NDPS Act while
extending the time to file final report. The petition for extension of time
filed well before expiry of 180 days. Petitioner been served with the copy
of the application in advance and the court has ensured that the accused is
given an opportunity to object. Since, no objection received from the
petitioner and being satisfied with the reason stated for extension of time
order passed on 18/10/2022 in the presence of the petitioner.
15. Likewise, the application for default bail under section
167(2) of the Code, been filed on06/12/2022 after granting extension of
time. The bail application dismissed on 23/12/2022 recording reason that
the petitioner is not entitled for default bail since the time for filing final
report is extended. The reasoning for dismissal of the default bail is sound
and just. In the absence of right to claim bail on the ground of default, the
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Crl.O.P.Nos.18817 & 18925 of 2024
application for bail is bound to fail.
16. For the reasons stated, these Criminal Original Petitions
viz., Crl.O.P.No.18817/2024 and Crl.O.P.No.18925/2024 stands
dismissed.
04.09.2024
Index:yes/no
Neutral Citation:yes/no
ari
To:
1.The Principal Special Judge under EC & NDPS Act, Chennai,
2.The Intelligence Officer, NCB, Chennai,
R.R.No.25 of 2022, In NCB F.No.48/1/07/2022-NCB/MDS
3.The Special Public Prosecutor(NCB Cases), High Court,Madras.
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Crl.O.P.Nos.18817 & 18925 of 2024
DR.G.JAYACHANDRAN,J.
ari
delivery Common Order made in
Crl.O.P.Nos.18817 & 18925 of 2024
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Crl.O.P.Nos.18817 & 18925 of 2024
04.09.2024
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