Chandu vs State Of Kerala

K.Haripal, J

These are applications filed by accused Nos.3, 5 and 2 respectively in crime No.1393/2020 of Angamaly police station, which was registered

alleging offence under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (the NDPS Act for short). The

crime was registered after seizure of 103.080 kg of ganja by the Sub Inspector of Angamaly police station on 25.11.2020. That day, at the early hours

at 1.30 a.m., on getting reliable information about unauthorised transport of huge quantity of ganja in two vehicles, he proceeded to the TB junction

Angamaly and started checking vehicles. On getting information that two cars, i.e. a Hyundai i10 bearing Regn. No. KL 30 G 3299 and a Maruti

Ertiga bearing Regn.No.KL 17 P 6435, are advancing towards Angamaly, he created a fake traffic block by parking a lorry across the road. At that

time both the said cars came that way; accused Nos.1 and 2 were travelling in KL 30 G 3299 and the other car was driven by the third accused. They

were intercepted and when the vehicles were inspected, the Hyundai i10 was found travelled by accused Nos.1 and 2; 41.130 kg of ganja was found

from its dikki whereas 61.950 kg of ganja was found transported in the other car. This together, i.e 103.080 kg of ganja, was seized from the

possession of the accused persons. They were arrested in the presence of independent witnesses and the crime was registered and since then they

are in judicial custody.

As large conspiracy was involved in the procurement and transport of so much quantity of ganja, the investigation was conducted exhaustively and

during the course accused Nos.4 to 7 were also arrested, and they are in judicial custody.

It is understood that the first accused has already been granted regular bail. Accused Nos. 2, 3 and 5 have moved these applications under Section

439, as stated earlier.

BA No.4663/2021 moved by the second accused was filed on 04.06.2021 invoking Section 439 read with 167(2)(a) of the Cr.P.C. While accused

Nos.2 and 3 claim that they are entitled to get regular bail, an added ground has been stated by the second accused in BA No.4663/202. According to

him, the order of the learned Additional Sessions Judge, who was in charge of the Principal Sessions Judge, dated 21.05.2021 is bad; it was passed

without hearing the counsel. That order was passed holding that the remand of the petitioners beyond 180 days is justified since he has granted an

extension of period of investigation under Section 36A(4) of the NDPS Act.

The learned counsel for the petitioners in BA Nos.3148 and 4663 of 2021 have submitted that the said order dated 21.05.2021 is ultravires so long

as it was passed behind their back and without intimating them.

The learned Public Prosecutor has opposed the said argument and also the applications for bail. According to her, from the order itself it is evident

that the order was passed after giving copy to the legal aid counsel. According to the learned learned Public Prosecutor, even if it is correct that they

were not given notice, they have not challenged the correctness of the order of the Additional Sessions Judge dated 21.05.2021, which is bad. But the

learned counsel in BA No.4663/2021 submitted that he had filed a vakalath during the first period of remand itself on 4.12.2020. But he was not given

notice before passing an order under Section 36A(4) of the NDPS Act. In this connection, he also relied on the decision reported in Sanjay Kumar

Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau and another [2010 KHC 312 : (2009) 17 SCC 631]. The latter argument of

the learned Public Prosecutor has been challenged by the learned counsel basing on the decision reported in Ravindran v. Intelligence Officer,

Directorate of Revenue Intelligence [2020 KHC 6604]. According to him, such an order need not be challenged separately, that they have an

indefeasible right to get bail immediately on completion of the statutory period of 180 days; it is true that the order dated 21.05.2021 was passed before

completion of 180 days in custody, still on account of non-service of notice on the petitioners itself that order cannot stand and on the date of passing

the order their applications for bail were pending before court.

I will consider BA Nos.4663/2021 and 3148/2021 at the outset because both the petitioners were arrested on 25.11.2020 and on 24.05.2021 they

had completed 180 days in judicial custody. If the order passed by the learned Sessions Judge on 21.05.2021 is in order and meets the requirements of

law, certainly they are not entitled to get statutory bail since the period of investigation stood extended.

Even though the said contentions touching the correctness of the order dated 21.05.2021 are not incorporated in BA No.3148/2021, the petitioners

in the BA Nos.4663/2021 and 3148/2021 are standing on the very same pedestal and both the applications can be considered together. As stated

earlier, both of them were arrested on 25.11.2020. By 24.05.2021 both of them completed 180 days in judicial custody. That means, by 24.05.2021 if

an order proper was passed by the learned Sessions Judge granting extension of the period of investigation, necessarily they are not entitled to get

statutory bail as claimed by them. But there is substance in the contention of the learned counsel that the order was passed without giving notice to

them. That is evident from the order itself. Paragraph 4 of the order states that notice was given to the Legal aid counsel.

At the instance of the parties, I have summoned the records leading to the order dated 21.05.2021 and I am convinced that notice was not given to

Adv.Ajeesh M. Ummer who had filed vakalath for accused Nos.1 to 3 as early on 01.12.2020. In other words, that order was passed without giving

notice to them. Of course, it is shown that notice was given to the Legal aid counsel. But in December 2020 itself accused Nos.1 to 3 had engaged a

lawyer of their choice so that, notice given to the legal aid counsel was an idle exercise which does not serve the purpose. This Court in the decision

reported in Midhun v. State of Kerala [2021 (4) KLT 421] has made it amply clear that an order passed under Section 36A(4) of the NDPS Act

without notice to the counsel for the accused is bad. That verdict was rendered basing on the decisions in Hitendra Vishnu Thakur and others v. State

of Maharashtra and others [(1994) 4 SCC 602] and Sanjay Kumar Kedia, cited supra. In Midhun supra, this Court has reiterated that, in order to

satisfy the requirements under Section 36A(4), the following four conditions should be satisfied:

(1) a report of the Public Prosecutor

(2) which indicates the progress of investigation

(3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and

(4) after notice to the accused.

Basing on the decision in Sanjay Dutt v. CBI [(1994) 5 SCC 410] the Court observed that at least oral notice should have been given or the remand

extension should have been made in the presence of the accused, so as to validate an order under Section 36A(4) of the NDPS Act. From the order

dated 21.05.2021 it cannot be assumed that the order was passed in the presence of the accused or at least oral notice was given. That means, the

fourth condition, which is quite important, has not been satisfied and therefore the order dated 21.05.2021 passed by the learned Sessions Judge cannot

stand and, as a necessary corollary, the petitioners in BA Nos.3148/2021 and 4663/2021 are entitled to be released on bail, as though period for

extension of investigation was not granted.

Moreover, as rightly pointed out by the learned counsel for the petitioners, merely for the reason that the order dated 21.05.2021 is not separately

challenged, an indefeasible right to get statutory bail under Section 167(2) read with Section 36A(4) of the NDPS Act cannot be denied to the

petitioners. On the expiry of 180 days, such a right becomes due to the accused. Here, the prosecution had not obtained a valid order for extension of

period of investigation. After going through the records, I am also doubtful whether a proper report was filed by the Public Prosecutor highlighting the

necessity of extension of period of investigation.

Therefore, the petitioners in both these applications shall be released on bail on the following conditions:-

i) The petitioners shall execute bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the trial court;

one of the sureties shall be a near relative;

ii) They shall surrender their passports before the Special Court within ten days from their release; if they do not possess passport, an affidavit shall be filed to that

effect within that period.

iii) They shall not leave Ernakulam revenue district till the final report is filed;

iv) They shall not try to contact or influence the witnesses or tamper with evidence;

v) They shall not involve in any crime during the period on bail;

vi) They shall appear before the committal/trial court on all dates of posting of the case;

vii) They shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19

pandemic;

viii) If any of the above conditions are violated by the petitioners, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

The petitioner in BA No.4185/2021 is the 5th accused who was arrested on 04.03.2021. The reasoning stated for releasing the other petitioners

i.e. accused Nos. 2 and 3 is not applicable to the petitioner. He has completed only 150 days in custody on 31.07.2021 and therefore he is not entitled

to get statutory bail. On merits also the case of the petitioner does not deserve consideration. The allegation of the prosecution is that it was the

petitioner/the 5th accused who had engaged the 6th accused, who, in turn, had procured the items and handed over to accused Nos.1 to 3. The

learned Public Prosecutor has submitted that there are materials on record to show that he had transferred an amount of Rs.30,000/- on 23.11.2020

from his account to the account of the 2nd accused through PhonePe. In other words, his involvement in the crime cannot be doubted at this stage.

Even though the 5th accused was not present at the time of seizure of the contraband from accused Nos.1 to 3, his involvement has been brought out

through other materials.

Section 29 was incorporated at the very inception. The contraband is of commercial quantity. The learned Public Prosecutor has strongly opposed

the application for bail. There are reasons to think about the active connivance of the petitioner/5th accused in the illegal transport of so much quantity

of ganja. As there are no reasons to find that he is not guilty, the embargo under Section 37 of the NDPS Act comes into play and he is not entitled to

be released on bail. Thus BA No.4185/2021 is dismissed.

In the result, BA Nos.3148/2021 and 4663/2021 are allowed and BA No.4185/2021 is dismissed.

The records summoned from the Principal Sessions Court, Ernakulam shall be returned forthwith.

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