Madras High Court
Kalaiselvan @ Kalai vs The State Of Tamil Nadu on 31 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1537 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 23.10.2024
Pronounced On 31.01.2025
CORAM
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1537 of 2024
1.Kalaiselvan @ Kalai
2.Prabhakaran @ Prabha ... Petitioners
Vs.
The State of Tamil Nadu,
Rep. by the Inspector of Police,
E-5, Sholavaram Police Station,
Tiruvallur District. ... Respondent
Prayer:- Criminal Revision filed under Section 438 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, to set aside the order of dismissal passed
by the learned Principal Special Judge under the EC and NDPS Act Cases
at Chennai, in Crl.M.P.No.8658 of 2024, dated 19.08.2024, filed under
Section 167 (2) (now under Section 187(3) of the Bharatiya Nagarik
Suraksha Sanhita, 2023) in Crime No.60 of 2024, on the file of the
respondent and enlarge the petitioners on bail.
For Petitioners : Mr.A.Samson
For Respondent : Mr.Hasan Mohammed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Addl.Public Prosecutor
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Page No.1 of 17
Crl.R.C.No.1537 of 2024
ORDER
This Criminal Revision Case has been filed by Kalaiselvan @ Kalai
and Prabhakaran @ Prabha [A1 and A2] in Crime No.60 of 2024, seeking
to set aside the dismissal order passed by the learned Principal Special
Judge under the EC and NDPS Act at Chennai, dated 19.08.2024, in
Crl.M.P.No.8658 of 2024.
2. Since the issue under consideration pertains to the grant of relief
under statutory bail, the relevant facts of the cases alone discussed for
consideration of the above prayer.
3. The learned counsel for the petitioners submitted that the
petitioners were arrested by the respondent Police on 19.01.2024. The
petitioners filed a statutory bail petition in Crl.M.P.No.8658 of 2024 on
17.07.2024, i.e., on the 181st day. The respondent, on the other hand, filed
a petition seeking extension period to complete investigation in
Crl.M.P.No.7605 of 2024 on 15.07.2024, i.e., on the 179 th day. The trial
Court did not serve any notice to the petitioners but entertained the
petition for extension period to complete investigation filed under Section
36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985
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[hereinafter referred to as ''the NDPS Act''], on 25.07.2024. The order
recorded that notices were served to the petitioners. Subsequently, the
petitioners' statutory bail petition was dismissed on 19.08.2024, citing that
the extended period was already granted on 25.07.2024, which according
to the learned counsel for the petitioners, is improper.
4. The learned counsel for the petitioners submitted that although
the petitioners filed their statutory bail petition within the statutory time
frame, it was not considered. Instead, a petition for extension period to
complete investigation was filed on 15.07.2024, i.e., on the 179th day,
which is just one day short of the statutory period, and without proper
notice, thereby denying the petitioners their mandatory right to defend
against the petition, 60 days extension period was granted. Thus, there has
been a clear violation of the mandatory condition, and the accused has
been denied their right guaranteed under Article 21 of the Constitution of
India. In these circumstances, the grant of extension period to complete
investigation, without adhering to the requirements laid down by the
Constitution Bench, has deprived the accused of the right to seek default
bail, resulting in a miscarriage of justice. Therefore, granting the
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extension period to complete the investigation is improper and vitiated.
5. The learned counsel for the petitioners relied on the principles
established in the case of Judgebir Singh @ Jasbir Singh Samra @
Jasbir and others vs. National Investigation Agency reported in 2023
SCC OnLine SC 543. In this case, the Hon'ble Apex Court, referring the
judgments of the Constitution Bench in Sanjay Dutt vs. State reported in
(1994) 5 SCC 410, as well as the judgments in Uday Mohanlal Acharya
vs. State of Maharashtra reported in (2001) 5 SCC 453; Suresh Kumar
Bhikamchand Jain vs. State of Maharashtra reported in (2013) 3 SCC
77; and M.Ravindran vs. Intelligence Officer, Directorate of Revenue
Intelligence reported in (2021) 2 SCC 485, held that filing of a charge
sheet is sufficient compliance with the provisions of Section 167 of the
Cr.P.C. Further, the Hon'ble Apex Court held that an accused does not
have an indefeasible right to be released on statutory/default bail under
Section 167(2) of the Cr.P.C., simply because cognizance has not been
taken before the expiry of the statutory time period after filing the charge
sheet.
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6. Further, the learned counsel for the petitioners, referring to
Paragraph 76 of the Judgebir Singh's case [cited supra], submitted that
an important principle has been highlighted, affirming that the law is now
well settled the accused must be given an opportunity of hearing before
the time for investigation is extended. It also held that the Courts could
not have ruled that the extension period petition should be considered
only after the statutory bail petition was decided, as this approach
contradicts the well-established position of law. Further, it was
emphasized that if the Investigating Agency seeks an extension, they must
ensure that such a request is not made at the last moment.
7. The learned counsel for the petitioners further relied on the
orders passed by this Court in Crl.R.C.No.924 of 2023, dated 22.06.2023
[Ajith vs. State] and Crl.R.C.No.2122 of 2023, dated 08.02.2024 [Grant
Victor Ikenna vs. State]. In these cases, this Court referred to the
guidelines and set aside the dismissal of statutory bail petition where the
trial Court had delayed consideration of the bail petition and then
dismissed the statutory bail petition, citing extension period to complete
investigation under Section 36-A(4) of the NDPS Act had been granted,
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but at a later point of time.
8. The learned counsel for the petitioners further submitted that the
Hon'ble Apex Court, in the case of Jigar @ Jimmy Pravinchandra
Adatiya vs State of Gujarat reported in CDJ 2022 SC 1043 : 2022
SCC OnLine SC 1290, extensively considered its previous judgments
and the provisions of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (TADA Act), the Prevention of Terrorism Act, 2002 (POTA
Act), and the Unlawful Activities (Prevention) Act, 1967 (UAPA Act),
which are similar to Section 36-A(4) of the NDPS Act. The Hon'ble Apex
Court held that it is mandatory to produce the accused and inform them
about the extension of the investigation period. Further, the investigation
report must meet the twin requirements for extension, and unless these
requirements are fully satisfied, the extension cannot be granted as a
matter of routine. The Hon'ble Apex Court also emphasized that granting
an extension period results in the deprivation of the accused's indefeasible
right to claim default bail which is a constitutional guarantee.
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9. Further, the learned counsel relied on the decision of the Full
Bench of the Calcutta High Court in Subhas Yadav vs. The State of
West Bengal reported in 2023 SCC OnLine Cal 313 and submitted that
the Full Bench of the Calcutta High Court had provided eight guidelines
on how petitions arising under Section 36-A(4) of the NDPS Act and
Section 167(2) of the Cr.P.C. should be considered, and issued directions
accordingly.
10. The learned counsel submitted that any petition under Section
36-A(4) of the NDPS Act should be decided without undue delay,
preferably within seven days from the filing of the petition. The Special
Public Prosecutor's report seeking an extension must be served upon the
accused or their counsel, and the accused should be present, either
personally or through video link, at the time of Court's consideration of
the petition.
11. The learned counsel further submitted that this Court, in the
case of Varun and others vs. State reported in 2024 SCC OnLine Mad
162, issued directions to the Special Court under the NDPS Act to adhere
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to these guidelines and circulated the order to all Principal District Judges
across Tamil Nadu. Following the decision in Varun's case [cited supra],
in a batch of cases in Crl.R.C.Nos.1847, 1885, 1849 and 2002 of 2024
[Mohamed Asaruthin vs. The State], this Court, by order dated
27.11.2024, held that if an extension petition is filed and is pending when
the statutory period for filing the final report expires, the trial Court must
follow the directions issued by the Hon'ble Apex Court and consider the
extension period petition and the bail petition together. The trial Court
must consider the extension period petition as expeditiously as possible,
and in any case, within seven days of receiving the petition. Furthermore,
the investigating agency is required to file the extension period petition
well in advance, at least 14 days before the expiry of the statutory period,
so that, the trial Court can consider it before the statutory period ends.
This would also allow the accused the opportunity to challenge the order
if they feel aggrieved. There would thus be no need to consider the
extension period petition together with the statutory bail petition.
However, in extraordinary circumstances, the extension period petition
may be filed within the last 14 days before the statutory period expires.
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12. The learned counsel submitted that the indefeasible right
guaranteed under Article 21 of the Constitution of India cannot be
infringed by filing an extension period petition at the last minute. Delays
in serving the notice would unfairly infringe the statutory right and deny
the indefeasible right that accrues to the petitioners.
13. In the present case, the petitioners were arrested on 19.01.2024,
and the 180th day for filing the charge sheet was completed on 16.07.2024.
However, the extension petition under Section 36-A(4) of the NDPS Act
was filed on 15.07.2024, i.e., on the 179 th day, which clearly violates the
guidelines set by this Court in Varun's case [cited supra], which have
been consistently followed. Furthermore, in this case, the notice was
served on the petitioners belatedly, depriving the petitioners of their
mandatory right to be present, informed, and heard.
14. The learned Additional Public Prosecutor filed a counter
affidavit detailing the registration of the case, the arrest of the accused,
the seizure of contraband, which is of commercial quantity, the arrest of
co-accused, and other aspects of the investigation.
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15. The learned Additional Public Prosecutor, referring to the
decisions in Rambeer Shokeen vs. State [NCT of Delhi] reported in
(2018) 4 SCC 405 and M.Ravindran's case [cited supra], submitted that
although the extension period petition was filed on the 179th day, resulting
in a delay, this delay does not automatically confer any accrued right to
the petitioners on the 180th day. Once the extension period petition has
been filed, the petitioners cannot seek or avail the statutory bail under
Section 167(2) of the Cr.P.C. The learned Additional Public Prosecutor
further submitted that the accused were arrested on 19.01.2024 and the
180th day fell on 16.07.2024. On 15.07.2024, the extension period petition
was filed on the 179th day. The petitioners filed statutory bail petition on
17.07.2024 and the same was dismissed on 19.08.2024 and the extension
period petition was allowed on 25.07.2024, granting 60 days time to
complete the investigation. The trial Court allowed the extension period
petition and rightly dismissed the statutory bail petition, hence, the
learned Additional Public Prosecutor sought for dismissal of the Criminal
Revision Case.
16. Considering the above submissions and on perusal of the
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materials, it is evident that the Hon'ble Apex Court, in the case of
Judgebir Singh [cited supra], following the decision in Jigar @ Jimmy
[cited supra], held that the accused must be given an opportunity to be
heard before granting extended period to complete investigation. The
Hon'ble Apex Court further held, it is incorrect for Courts to withhold
consideration of statutory bail petition merely because the petition for
extension period to complete investigation is pending. Such a delay is
contrary to the well-established position of law. The investigating agency,
when seeking an extension, must ensure that such requests are not made at
the last moment.
17. In Jigar @ Jimmy's case [cited supra], the Hon'ble Apex Court
referred to its previous rulings, including that of Constitution Bench,
examined the relevant provisions of the TADA, POTA and UAPA Acts,
which are analogous to Section 36-A(4) of the NDPS Act. These
provisions impose specific restrictions and confer certain rights to the
investigating agency. After detailed consideration, the Hon'ble Apex
Court concluded that Section 167(2) of the Cr.P.C. sets an outer time limit
for remanding an accused, proportionate to the seriousness of the alleged
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offence. If the investigation is not completed within prescribed time, the
accused is entitled to default bail as a matter of right, which is a
constitutional right.
18. The timeline set under sub-section (2) of Section 167 of the
Cr.P.C. ensures that investigating officers are compelled to act promptly
and efficiently, preventing misuse of further remand periods. The Hon'ble
Apex Court further held that sub-section (2) of Section 167 of Cr.P.C. is
intrinsically linked to the constitutional guarantee under Article 21 of the
Constitution of India, which safeguards personal liberty against unlawful
and arbitrary detention.
19. Furthermore, it emphasized that the report of the Special Public
Prosecutor seeking extension period to complete investigation under
Section 36-A(4) of the NDPS Act is not a mere formality but a crucial
document, as its acceptance directly affects the liberty of the accused. The
report must therefore strictly adhere to the legal requirements.
Specifically, it must include:
(a) A detailed account of the progress of the investigation, and
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(b) Specific reasons justifying the need for continuing the detention
of the accused beyond the 180-day period.
Thus, the request for granting extension period to complete investigation
is not a mere procedural formality.
20. As far as the service of notice regarding the petition for
extension period to complete investigation is concerned, it is not
necessary for the accused to receive a written notice with the reasons
stated. It suffices for the Court to inform the accused that the extension of
the investigation period is under consideration, ensuring accused is put on
notice and given an opportunity to object to the request for an extension.
21. It is mandatory for the accused to be produced before the Court
when considering the petition for extension period to complete
investigation. The accused must be informed that the issue of extending
the investigation period is being considered. If the accused is not given an
opportunity to be heard, the requirement to produce the accused becomes
a mere formality and loses its legal significance.
22. The Hon'ble Apex Court further held that granting an extension
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period for completing investigation directly impacts the accused's
indefeasible right to default bail. Therefore, the issuance of notice is not a
mere procedural formality. The procedures outlined in Article 21 of the
Constitution of India, which protects personal liberty, must be followed,
ensuring that the process is fair and reasonable. Failing to produce the
accused before the Court, either physically or virtually, and failing to
inform them of the Special Public Prosecutor's petition for an extension
period, constitutes more than a procedural irregularity, it is a serious
violation of the accused's rights under Article 21 of the Constitution of
India.
23. Such a failure is not just an error; it constitutes a gross illegality
that infringes upon the constitutional protection guaranteed to the
accused. Therefore, the prejudice is presumed and does not need to be
demonstrated by the accused. Further, the Hon'ble Apex Court mandated
that the Public Prosecutor must file a report at least a week before the
statutory period expires, allowing the accused sufficient time to review
the contents and oppose the extension if they wish to do so under the law.
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24. Considering the facts of the case, the grant of extension period
to complete investigation without adhering to the procedural safeguards
established by the Constitution Bench has deprived the accused of their
right to seek default bail, leading to a failure of justice. Therefore, the
decision to grant an extension period for completing the investigation is
improper and vitiated.
25. In view of the above, this Criminal Revision Case stands
allowed and the impugned order dated 19.08.2024 made in
Crl.M.P.No.8658 of 2024, is set aside and the petitioners are entitled to
statutory bail with the following conditions:-
(i) Each of the petitioners shall execute a bond for a sum of
Rs.10,000/- (Rupees ten thousand only), with two sureties, each
for a like sum to the satisfaction of the learned Principal Special
Judge, Principal Special Court under EC & NDPS Act cases,
Chennai;
(ii) The petitioners and the sureties shall affix their
photographs and Left Thumb Impression in the surety bond and
the Trial Court may obtain a copy of their Aadhar Card or Bank
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Pass Book and mobile numbers to ensure their identity; and
(iii) The petitioners shall appear before the trial Court on
the first working day of every month at 10.30 a.m until further
orders and if they are not able to appear before the trial Court on
any day, they shall make arrangements to file an application under
Section 317 Cr.P.C. and shall appear before the trial Court on any
other day in lieu of the date of their absence, as directed by the
trial Court.
Index : Yes/ No 31.01.2025
Neutral Citation: Yes / No
Speaking Order / Non-Speaking Order
smn2
To
1.The Principal Special Judge,
Special Court for EC and NDPS Act cases,
Chennai.
2.The Inspector of Police,
E-5, Sholavaram Police Station,
Tiruvallur District.
3.The Public Prosecutor,
High Court,
Madras.
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M.NIRMAL KUMAR, J.
smn2 / vv2
Pre-delivery order in
31.01.2025
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