Jiyaur Rahman Barhuiya vs State Of Manipur And Others

M.V. Muralidaran, J

BRIEF CASE OF THE PETITIONER/ACCUSED:

[1] The petitioner/accused was arrested along with two others in connection with the NCB Crime No.06/2018 U/s 8(c), 17(c), 21(c), 22(c), 29 & 35 of the ND & PS Act, 1985 as amended on 05.04.2018 and has been under Judicial custody for the last 9/10 months i.e., 300 days in jail.

[2] At the time of arrest the Narcotics Controls Bureau/Narcotics personnel has violated the formalities to be observed under the mandatory provision of the N.D. & P.S. Act.

[3] The petitioner/accused along with two other co-accused on 05.04.2018 were travelling in N.H. 53 to Silchar from Imphal in connection with a business trips wherein a group of persons which is later identified as a member of Narcotics Controls Bureau, Imphal stop them near Khumbong area and start frisking and checking the vehicles. And to the utter surprise it is alleged that some Psychotropic and controlled drugs is found from the vehicles used by the accused persons thereby detained and filed as case against the accused person being Crime No.06/2018 U/S 8(c), 17(c), 21(c), 22(c), 29 & 35 of the N.D. & P.S. Act, 1985 as amended.

[4] The petitioner/accused is quite innocent of the alleged charges leveled against him and he has been falsely implicated in this case. The statutory mandatory period of detention of 180 days as per section 167(2) of the Code of Criminal Procedure, 1973 as amended is violated since the petitioner/accused had been in custody for 300 days till date.

Therefore, this bail application is filed for enlarging the petitioner/accused on bail.

Objections raised by the respondents No.2 & 3:

[5] A case has been filed by police in NCB Crime No.06/04/NCB/Imp/NDPS/C1/2018 dated 05.04.2018 has been registered against them. After completing and following the mandatory provisions of the law and the rules framed therein and considering the necessity for further investigation into the crime committed and also for taking up necessary action and processed for conducting chemical examination of the seized items by the expert namely the Chemical Examiner, Forensic Sciences Laboratory, Assam, the Petitioner and the two other accused were produced before the Learned Chief Judicial Magistrate, Imphal West, Manipur on 05.04.2018 and the Chief Judicial Magistrate, Imphal West after proper examination of the materials and records, remanded the petitioner and the other two accused to judicial custody for a period of fifteen days till 19.04.2018.

[6] The petitioner had earlier filed a bail application before the Learned Special Court (ND & PS) Imphal but the Ld. Court in its wisdom had rejected the same mainly on default of the Petitioner's conducting counsel at the time of hearing on 02 to 03 occasions.

[7] The Narcotics Control Bureau, Imphal Sub Zone personnel had violated the formalities to be observed under the ND & PS Act 1985, as amended at the time of the arrest of the Petitioner.

[8] The petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail as provided in Section 37 of the ND & PS Act 1985 as amended.

[9] The accused No.4 namely Mr. Golam Wazid Barbhuiya @ Tinku Barbhuiya who is also involved in the same crime is now absconding and that a warrant of arrest has also been issued against him by the Learned Special Court (ND & PS) Lamphelpat, Imphal also passed an order dated 10.06.2019 to provide legal counsel to the petitioner and the two other accused as Shri R.K. Suresh Singh, Advocate had submitted before the Hon'ble Special Court (ND & PS) Lamphelpat, Imphal that he was not formally engaged by the petitioner and the two other accused.

[10] I have given my careful consideration to the respective submission made by the learned counsel for both parties.

[11] The provisions of Section 36(A) (4) and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) reads thus:

Section 36A. Offences triable by Special Courts

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers:-

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorized by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction

(c) The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section:

(d) A Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36.

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.]"

Section 37 Offences to be cognizable and non-bailable

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an [offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section

(1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]"

[12] The provisions of Section 36(A)(4) of the NDPS Act is analogues to the provisions of Section 167(2) of Cr.P.C. with a difference regarding the period of detention. Under Section 167(2) of Cr.P.C. the maximum period of detention for a case not triable by Sessions is 60 days and in case of Sessions trial 90 days, the investigation to be completed and Final Report to be filed. The Hon'ble Supreme Court in the case of Union of India vs. Thamisharasi and others in (1995) 4 SCC 190 while interpreting the provisions of Section 167(2) of Cr.P.C. has held that the Court has no power to keep the accused in judicial custody beyond the period mentioned therein and if the investigation is not completed, the accused would get statutory right to seek bail without reference to the merits. The Provisions of Section 36 A(4) of the NDPS Act prescribes maximum period of detention of 180 days and that the investigation agency should file the Final Report or the complaint within the said period. If not done, what is the effect is the question involved.

[13] The provision of Section 37 of the NDPS Act departs from the general principles of grant of bail under Section 437 of Cr.P.C. The prosecution should prima facie prove the guilt of the accused under Section 437 of Cr.P.C. to resist the bail application, but under Section 37 of the NDPS Act, the situation is converse, the accused has to prove prima facie his innocence to take bail. Therefore onus could be on the accused to prove his innocence. The question now arises is as to whether Section 37 of the NDPS Act should be read in conjunction with Section 36 A(4) of the NDPS Act while granting bail or the Section 36 A(4) of the NDPS Act should be read independently.

[14] The Hon'ble Supreme Court in Rajwinder Singh vs. State of Punjab in Cril.Misc.No.M-35502/2011 has made the following observations:

"I have considered the orders dated October 12, 2011. It is a settled principle of law as laid down by the Hon'ble Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra, AIR 2001 SC 1910 laying down that if the challan is not presented within the period stipulated in Section 167 (2) Cr.P.C. accused gets an indefeasible right to get bail and that subsequent Cril.Misc.No.M-35502 of 2011 [3] filing of challan during the pendency of the bail application will not extinguish an indefeasible right of an accused to get bail. In the present case in the light of provisions of Section 167 (2) Cr.P.C. read with Section 36 A (4) of the NDPS Act, challan was required to be filed within 180 days by the prosecution agency as it was not filed, the petitioner had exercised his right under Section 167(2) Cr.P.C. on October 4, 2011. Section 36 A (4) of the NDPS Act reads as follows:- "Section 36 A (4) : In respect of persons accused of an offence punishable under Section 19 or Section 27 A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days";

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days." No doubt, on the basis of the powers conferred in the Court under Section 36 A (4) of the NDPS Act as mentione above, the Special Court can extend the period of presentation of challan beyond 180 days on Cril.Misc.No.M-35502 of 2011

[4] an application of Public Prosecutor indicating the progress of the investigation and the specific reason for detention of the accused beyond a period of 180 days. The Hon'ble Apex Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau, 2009 (17) SCC 631 has observed that in application for extension of time under Section 36 A (4) of the NDPS Act, the investigating officer is required to specifically mention the progress of the investigation and the compelling reasons which are required for extension of custody beyond 180 days. A notice is also required to be issued to the accused before allowing such application for extension of custody."

[15] It is not disputed that the provisions of Section 167 (2) Cr.P.C. are applicable to the offence under the NDPS Act. If further extension is needed it could be possible only on compliance of the mandatory provision under Section 36(A)(4) of the Act. The report prepared by the Police was submitted by the Special Public Prosecutor, which cannot be construed as report filed by the Public Prosecutor, as contemplated under Section 36(A)(4) of the NDPS Act. Further the report should indicate the progress of investigation which is also missing in the report. In the instant case the progress of investigation is also not specifically stated with the compelling reasons, for seeking detention of accused beyond a period of 180 days. In the aforesaid report filed by the respondent, the compelling reasons for seeking the detention of accuse beyond a period of 180 days is not available, through there was notice to the accused. As the mandatory provision under Section 36(A)(4) of NDPS Act are not complied with, I am of the view that the objection raised by the respondent after 180 days without filing final report would not be justifiable. Even as per the prosecution case no contraband was seized from the petitioner. On the aforesaid facts and circumstances of the case, I am of the view that the petitioner is entitled to statutory bail.

[16] In the case on hand, the petitioner/accused and 2 others were produced before the Learned Chief Judicial Magistrate on 05.04.2018 and remanded to judicial custody on 06.04.2018. It is the case of the petitioner/accused that he was travelling in the NH 53 for Silchar in connection with business trip and he was arrested and in judicial custody for more than 300 days and thereby the respondent violated the provisions under section 167 (2) Cr.P.C.

[17] Further, the respondent police filed the final complaint on 29.09.2018 and cognizance was taken by the Special Court on 26.11.2018. Therefore, the remand extension was not supported by the report of the Special Public Prosecutor and the learned the trial Court mechanically extended the remand after the expiry of 90 days.

[18] In 'Gurpal Singh and another v. State of Punjab', decided on 23.04.2016, where the Hon'ble High Court of Punjab observed as follows:-

"Following the judgment of Hon'ble Apex Court in Satya Narain Musadi's case (supra) which has been followed by the High Court of Andra Pradesh in Matchumari China's case (supra), and by Calcutta High Court in Raghubirsaran Jain and another Vs. State and another, 1995 Crl.LJ 4117, I am of the considered opinion that the petitioners herein 1 of 4 should have been released, in peculiar circumstances of this case, as indefeasible right had accrued to them under Section 167 (2) Cr.P.C. On presentation of incomplete challan without the report of chemical examiner and the prosecution agency having not availed the benefit of Section 36A (4) of the NDPS Act within a period of 180 days. In a case under the NDPS Act, a right of bail under Section 167 (2) Cr.P.C. of an accused can be defeated by the prosecution agency by availing the remedy under Section 36A (4) of the NDPS Act subject to the fulfillment of the statutory requirement of Section 36 A (4) of the NDPS Act which is to be considered in each case on individual merits by the concerned trial Court/ Special Judge. The right under Section 167(2) Cr.P.C. cannot be defeated by merely filing an incomplete challan. It is pertinent to observe here that all observations made in this judgment are in context to the offences under the NDPS Act.

It is not out of place to observe here that the judgment of Narendra Kumar Amin's case (supra) relied upon by the trial Court is not applicable to the facts of the present case. In Narenndra Kumar Amin's case (supra), default bail under Section 167 (2) Cr.P.C. had been declined by the CBI Court as well as by the Gujarat High Court, as the challan had been presented on the last date of expiry of 90 days. In the said case, the prosecution had sought extension of detention for custody prior to the expiry of 90 days and period of remand had been extended beyond the period of 90 days. In the said case, the period of remand was extended till July 5, 2013 and the challan had been presented on July 3, 2 of 4 2013. The Apex Court had held that filing of the police report as required under Section 173(2) Cr.P.C. was within the period of 90 days. So far as the material which forms part of the report under Section 173 (2) Cr.P.C. is concerned, the High Court had observed in para

10.1 of its judgment that the contents of the charge sheet set in its prefatory details, showed the revelations in the investigation. The Investigating Officer mentioned the role played by the accused persons and he opined on the basis of the material collected by him during the investigation that the prima-facie commission of offence in his view was made out. The High Court had observed that it was evidently clear that the charge sheet as presented, incorporated all the necessary details required under Section 173(2) including that whether offence was committed and by whom, which was in terms of clause (d) of Section 173 (2)."

[19] Learned State counsel is unable to deny that prosecution did not file an application under section 36A (4) NDPS Act praying for extension of time to await the FSL report.

[20] The factual position is that, an incomplete challan was filed which flaw is incurable in view of law in Gurpal Singh's case (supra) and other cases.

[21] FSL report is available after the period of 180 days fixed by the legislature in the Act. Therefore, keeping in view the facts and circumstances of the present case, and without expressing any opinion on the merits of the case, I have no option but I am inclined to allow this petition and the petitioner is ordered to be released on bail, subject to the satisfaction of the concerned trial Court/ Illaqa Magistrate.

[22] In the result,

(a) the bail application is allowed.

(b) the petitioner is directed to be released on bail on condition that the petitioner should execute two sureties for a like sum of Rs.1,00,000/- each to the satisfaction of the Learned Special Judge, N.D.&P.S., Manipur at Lamphelpat.

(c) the petitioner is directed to report before the Learned Special Judge, NDPS, Manipur Lamphelpat at 10.00 a.m. until further orders.

(d) the petitioner is directed to appear in all hearings of the case before the Learned Special Judge, NDPS, Manipur, Lamphelpat.

(e) the Learned Special Judge is directed to dispose the case within a period of 6(six) months from the date of receipt of this order.