Madras High Court
E.Kadhar Basha vs Union Represented By on 26 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.5321 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.02.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.5321 of 2025
1. E.Kadhar Basha
2. R.Senthil Kumar ... Petitioners
Vs
Union represented by
The Inspector,
NCB, Chennai Zonal Unit,
Chennai – 600 017.
R.R.No.23 of 2023 ... Respondent
PRAYER: Criminal Original Petition is filed under 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023/ Section 482 of Cr.P.C, to set aside the
order of remand passed as against the petitioner by the Judicial
Magistrate-II, Ponneri in R.R.No.23 of 2023, dated 27.07.2023 in the
interest of justice.
For Petitioners : Mr.M.G.Martinmanivannan
For Respondent : Mr.N.P.Kumar
Special Public Prosecutor for NCB
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Crl.O.P.No.5321 of 2025
ORDER
This petition has been filed challenging the order of remand
passed as against the petitioner by the Judicial Magistrate-II, Ponneri in
R.R.No.23 of 2023, dated 27.07.2023.
2. Heard the learned counsel on either side and perused the
materials placed on record.
3. The petitioners are arrayed as A1 and A2 in R.R.No.23 of
2023 under Sections 8(c) read with 20(b)(ii)(C), 27A, 28 and 29 of
NDPS Act, 1985 on the file of the respondent, alleging that the
petitioners were in possession and transported Ganja weighing about
432.700 kgs and intercepted a vehicle which was driven by the first
accused bearing Registration No.TN 31 BD 6347 at Karanodai Toll
Plaza, Chennai on 24/25.07.2023. However, they were remanded to
judicial custody on 27.07.2023. In the meanwhile, they were kept in the
illegal custody and they were tortured by physically and mentally for
almost three days.
4. After a period of three days, they were produced for remand
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on 27.07.2023. Immediately, after their arrest, they were not produced
before the nearest Magistrate. That apart, their arrest were not intimated
to any of the petitioners' friends, relatives or family members. The
respondent violated the mandatory procedure as contemplated under
Section 167 Cr.P.C. Further, the respondent failed to produce the
petitioners within 24 hours from the time of arrest/detention as
contemplated under Section 57 of Cr.P.C or not transmitted to the nearest
Judicial Magistrate. Therefore, it is a clear violation of Article 22 of
Constitution of India.
5. In support of contention, the learned counsel for the
petitioners relied upon the Judgment of the Hon'ble Supreme Court of
India in SLP (Crl.)No.13320 of 2024, in the case of Vihaan Kumar Vs
State of Haryana and another dated 07.02.2025, in which the Hon'ble
Supreme Court of India held that as per clause 1 of Article 22 of
Constitution of India that no person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for
such arrest. Further as per Section 50 of Cr.P.C, a person arrested to be
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informed of grounds of arrest and of right to bail.
6. Article 22(5) of Constitution of India is regarding
communication of the grounds of arrest or detention in writing to the
relatives, family members or friends of the accused. Therefore, Article
22(1) and 22(5) of Constitution of India cannot be breached under any
situation. Non compliance of the constitutional requirements and
statutory mandate would lead to the custody or the detention being
rendered illegal, as the case may be.
7. It was further held that the purpose of inserting Section 50A
of Cr.P.C, making it obligatory on the person making arrest to inform
about the arrest to the friends, relatives or persons nominated by the
arrested person, is to ensure that they would able to take immediate and
prompt actions to secure the release of the arrested person as permissible
under the law. The arrested person, because of his detention, may not
have immediate and easy access to the legal process for securing his
release, which would otherwise be available to the friends, relatives and
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such nominated persons by way of engaging lawyers, briefing them to
secure release of the detained person on bail at the earliest. Therefore,
communicating the grounds of detenue and in addition to his relatives as
mentioned above is not merely a formality but to enable the detained
person to know the reasons for his arrest but also to provide the
necessary opportunity to him through his relatives, friends or nominated
persons.
8. A perusal of records revealed that on secret information, the
respondent intercepted the vehicle which was driven by the first accused
along with second accused at about 18.10 hrs, on 24.07.2023 and the
accused were questioned about the transportation of ganja. The accused
replied that they were carrying 220 ganja packets packed in 11 gunny
bags concealed in the truck back side and covered with green colour
plastic tarpaulin. Those packets have to be delivered at Ramanathapuram,
Tamil Nadu. Thereafter, they were served with summons to conduct
search. In the presence of two witnesses, search was made and it was
found that they were in possession of Ganja in 11 gunny bags. Each
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gunny bag had 20 brown colour taped packets. After taking samples,
sealed remaining packets. Thereafter, personal search was also conducted
on the petitioners, after following the provisions under Section 50 of
NDPS Act. The vehicle was also seized and prepared mahazer.
9. Thereafter, on 25.07.2023, the petitioners were issued with
summons under Section 67 of NDPS Act for enquiry and the same were
duly received by them. They made statements on 25.07.2023 and
26.07.2023. After recording their statements, on 26.07.2023, they were
issued with arrest memo at about 19.00 hrs. Thereafter, they were
produced before the learned Magistrate II, Ponneri, Thiruvallur.
10. On 27.07.2023, at about 09.45 pm, the petitioners were
served with arrest memo and the reasons for the arrest were also duly
explained to them. The learned Judicial Magistrate II, Ponneri, recorded
that no external injury found and no complaint against the petitioners.
The arrest intimation was also given to the persons nominated by the
petitioners. Thereafter, the learned Magistrate accepted the remand and
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remanded them to judicial custody till 04.08.2023.
11. A perusal of the arrest intimation of the petitioners dated
26.07.2023 categorically stated about the grounds of arrest and also
intimated to the wife of the first petitioner. In fact, the first petitioner also
endorsed in the arrest intimation dated 26.07.2023 that the arrest of the
first petitioner was duly informed by him through the phone from the
office of the respondent. Likewise, the second petitioner also endorsed
that the arrest intimation was informed to his mother through the phone
from the office of the respondent.
12. Therefore, the respondent followed the procedures as
contemplated under Article 22(1) and 22(5) of the Constitution of India.
They also followed the procedure as contemplated under Section 57 of
Cr.P.C and Section 50 of NDPS Act, while arresting the petitioners and
also while remanding them to the judicial custody. Therefore the above
Judgment is not applicable to the case on hand. That apart, the petitioners
challenged the order of remand dated 27.07.2023 after a period of nearly
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two years, since they were not granted bail. Therefore, they have
challenged the order of remand as if the respondent failed to follow the
procedures while arresting them and while remanding them to judicial
custody.
13. In view of the above, this Court finds no infirmity or
illegality in the order of remand as against the petitioners by the Judicial
Magistrate-II, Ponneri in R.R.No.23 of 2023, dated 27.07.2023 to
interfere by this Court.
14. Accordingly, this Criminal Original Petition is dismissed.
26.02.2025
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
mn
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To
1. The Inspector,
NCB, Chennai Zonal Unit,
Chennai – 600 017.
2. The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN. J,
mn
26.02.2025
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