Venkatesan Balasubramaniyan vs Intelligence Officer, D.R.I. Bangalore

,,

Ashok Bhushan, J",,

Leave granted. These three appeals have been filed against the common judgment dated 30.11.2018 of the High Court of Judicature at Hyderabad,,

in Criminal Petition No.10524 of 2018 filed by the respondent before the High Court. By the impugned judgment dated 30.11.2018, the petition filed by",,

respondent Under Section 439(2) Cr.P.C. has been allowed cancelling the bail granted to the appellants by order dated 12.07.2018 by Metropolitan,,

Sessions Judge, Hyderabad.",,

The facts and issues in these appeals being similar, it shall be sufficient to refer to the pleadings in Criminal Appeal arising out SLP (Crl.) No.1452",,

of 2019- Venaktesan Balasubramaniyan Vs. The Intelligence Officer for deciding all these appeals, brief facts of which are as under:-",,

2.1 On 11.01.2018, car bearing No. KA 39 M 2117 was intercepted by Directorate of Revenue Intelligence (hereinafter referred to as “D.R.I.â€),",,

Hyderabad at toll plaza, Kamkole Village, Munnipalli Mandal, Sangareddy District, Telangana in which appellants (driver and two men) were",,

travelling. The appellants along with other two persons introduced themselves on being asked as to whether they have secreted anything illegal in the,,

car, the appellant’s replied in negative. The Officers searched the car and found false casing behind the rear seats on the side walls of the boot of",,

the car with metal doors. The appellants’ opened the door and few transparent packets with off-white coloured packets were found in the casing,,

attached to the walls of the boot. The appellants’ told that packets were of Narcotic drug, which were loaded in the car by a person named Suraj",,

at Omerga, Osmanabad District Maharashtra, which were to be delivered at Chennai. The Officers in presence of Panchas and the appellants opened",,

the packet and tested the materials in the packet. The appellants were taken to the office of D.R.I., Hyderabad. The total quantity of packets",,

(Methaqualone) weighed to be 45.874 Kgs.,,

2.2 On 12.01.2018, the appellants were arrested in exercise of power conferred under Section 42 of NDPS Act, 1985 (hereinafter referred to as",,

“Act, 1985â€). The D.R.I. officers prepared a crime report against all the accused-appellants for commission of offence under Sections 22, 28 and",,

29 of NDPS Act and produced them before the VI Additional CMM, Hyderabad. The duty Magistrate on 12.01.2018 allowed the application for",,

remand and the appellants were remanded till 25.01.2018. On 25.01.2018, the appellants-accused persons were produced before the Special Sessions",,

Judge Court, D.R.I., Hyderabad. Remand of the appellants was extended from time to time. On 10.07.2018 the appellants were remanded only for",,

two days since 180 days prescribed for filing charge sheet were coming to an end on 12.07.2018.,,

2.3 On 12.07.2018, since 180 days had expired, the appellants filed bail application. Learned Special Sessions Judge, Hyderabad granted bail to the",,

appellants under Section 167(2) Cr.P.C. On 12.07.2018, a letter was received from the Additional Sessions Judge, Omerga, Maharashtra asking to",,

handover the custody of appellants to D.R.I., Bangalore as they were required to appear before the Additional Sessions Judge, Omerga, Maharashtra",,

in Special Case (NDPS) No.17 of 2018. The Sessions Court, Hyderabad granted the custody of three accused on 13.07.2018 to the D.R.I.,",,

Bangalore. D.R.I., Bangalore produced the appellants before Additional Sessions Judge, Omerga, Maharashtra on 14.07.2018 where they were",,

remanded till 27.07.2018.,,

2.4 On 02.08.2018, D.R.I., Bangalore filed application before the Special Court, Hyderabad to transfer the records in the Hyderabad case to Omerga",,

Sessions Court. On 24.08.2018, the Special Sessions Judge, Hyderabad transferred the records to the Omerga Court. When Special Court, Omerga,",,

Maharashtra came to know that the appellants-accused have already been granted bail on 12.07.2018 before which date charge sheet was already,,

filed before the Omerga Court on 06.07.2018 which was taken on file on 11.07.2018 A show cause notice was issued to D.R.I., Bangalore to give",,

explanation. The D.R.I., Bangalore filed an application for cancellation of bail under Section 439(2) Cr.P.C. in the High Court by filing Criminal",,

Petition No. 10524 of 2018. The High Court by the impugned order dated 30.11.2018 cancelled the bail granted under Section 167(2) Cr.P.C. dated,,

12.07.2018. Aggrieved against the order dated 30.11.2018, these appeals have been filed by the three accused-appellants.",,

This Court on 22.02.2019 noticed that only one of the appellants, i.e., Villayutham Nagu, has been released in pursuance of the bail order dated",,

12.07.2018, interim order was passed in the special leave petition filed by Villayutham Nagu alone and other two appellants being still under custody,",,

notices were issued in all the matters.,,

We have heard Shri M. Karpaga Vinayagam, learned senior counsel for the appellants. Shri Vikramjit Banerjee, learned Additional Solicitor",,

General has appeared for the respondent.,,

Learned senior counsel for the appellants submits that before the Special Judge, Hyderabad when the case was taken on 12.07.2018 neither any",,

charge sheet was filed before the Special Court Hyderabad nor any information was given to the Special Court that any charge sheet has been filed in,,

Omerga Court, Maharashtra. No complaint under Section 36A(d) of NDPS Act having been filed by 12.07.2018 by which period, 180 days had",,

lapsed, the learned Special Court had granted default bail on 12.07.2018 to all the appellants. The accused were entitled for default bail under Section",,

167(2) Cr.P.C. Learned Senior counsel submits that instead of filing an application for cancellation of the bail before the Special Court under Section,,

439(2) Cr.P.C., the respondent approached before the High Court under Section 439(2) Cr.P.C. When the bail order was passed by the Special Court,",,

D.R.I., Bangalore ought to have informed the Special Court seeking the cancellation of the bail by giving explanation as to why the fact of filing",,

combined complaint was not informed to the Special Court. It is submitted that recovery of contraband from accused by the D.R.I. Hyderabad is,,

entirely different from the Omerga case, which is relating to the recovery of the contraband manufactured at the factory situated at Omerga. The",,

appellants are to be charged only for the offence of possession and the transport. The appellants have no role to play with reference to the,,

manufacture of contraband in the factory at Omerga. The seizure of the contraband was made by the D.R.I., Hyderabad on 11.01.2018 only during",,

the time between 12 PM to 3:30 PM at Hyderabad whereas the recovery of contraband from the factory at Omerga was made by the D.R.I.,",,

Bangalore only on 11.01.2018 at 4.30 PM and on 12.01.2018. It is further submitted that when the Special Court was not informed either on,,

10.07.2018 or 12.07.2018 that any charge sheet has been filed on 06.07.2018, no error was committed by Special Court in granting the default bail",,

under Section 167(2) Cr.P.C.,,

Learned Additional Solicitor General refuting the submissions of the learned senior counsel for the appellants contends that the appellant’s Car,,

was intercepted at Hyderabad on basis of specific and credible information that huge quantity of NDPS substance being illegally manufactured in,,

premises of M/s. Pragati Electrical Work Omerga, which is being transported to Chennai. A total of 45.874 Kgs of NDPS substance from the",,

appellants was seized on the basis of specific intelligence. In the voluntary statements of accused Nos. 5, 6 and 7 (appellants), recorded under Section",,

67 of the Act, 1985 in connection with the seizure of 45.874 Kgs. of substance, they have stated that started from Omerga for Chennai. It is submitted",,

that a combined charge sheet has been filed taking into consideration the entire sequence of events including the seizure of 45.874 Kgs. NDPS,,

substance by D.R.I., Hyderabad in which present appellants are accused Nos. 5, 6 and 7. It was due to non-communication of information of",,

combined complaint having been filed on 06.07.2018, the order was passed by the Special Court on 12.07.2018 granting default bail whereas on the",,

same day, a letter was received by Special Court, Hyderabad where the Special Court, Omerga has asked for the custody of the accused. All the",,

appellants filed a bail petition on 18.07.2018 before the Omerga Court under Section 439 Cr.P.C., which bail application was subsequently withdrawn",,

Sl. No.,Quantity,Remarks

01.,45.874 Kgs,Seized under Mahazar dated 11.01.2018

02.,500 Grams,"Seized under Mahazar dated, 11/12.01.2018

03.,9.65 Kgs,Seized under Mahazar dated 11.06.2018

under Section 439(2) CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] has also clarified that the concept of setting aside an unjustified,",,

illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because,,

of some new facts requiring such cancellation.â€​,,

It is not even submitted before us that Omerga Court where common complaint has been filed against the accused had no jurisdiction to inquire,,

and try the offence. It was due to some miscommunication that at the time when Court passed the order on 12.07.2018, the factum of filing of",,

combined complaint dated 06.07.2018 was not brought into the notice of Special Court, Hyderabad. Although, letter of the same date 12.07.2018 was",,

received by Special  Court, Hyderabad from Special Court, Omerga praying for custody of the appellants, which custody was also granted by the",,

Special Court, Hyderabad on the next day, i.e., 13.07.2018. All these facts were brought before the High Court in application filed under Section",,

439(2) Cr.P.C. and the High Court has rightly cancelled the bail order dated 12.07.2018. We do not find any error in the order of the High Court,,

cancelling the bail order dated 12.07.2018.,,

It is true that two offences, one at Hyderabad being at the instance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registered and another",,

case Special NDPS No. 17 of 2018 by the D.R.I., Bangalore, Zonal Unit. A combined complaint taking care of both the offences was filed before the",,

Special Court, Omerga as noted above wherein offences committed by the accused were also inquired and dealt with. There is ample material in the",,

complaint that the transportation of narcotic substance started from Omerga, Maharashtra and was being allegedly to be taken to Chennai and",,

intercepted at Hyderabad. The complaint, which has been brought on the record gives the detailed facts including the journey and the interception of",,

appellants at Hyderabad. The combined complaint having been filed on 06.07.2018, i.e., well within 180 days, the High Court did not commit any error",,

in cancelling the default bail granted to the appellants on 12.07.2018.,,

We, thus, are of the view that there is no ground for interfering with the impugned judgment /order of the High Court. We have noted above that",,

regular bail application under Section 439 Cr.P.C. was filed before the Omerga Court by the appellants, which was withdrawn on 25.09.2018, we are",,

of the view that it is open for the appellants to file regular bail application before Omerga Court under Section 439 Cr.P.C. afresh, which may be",,

considered on merits without being influenced by any observations made by the order passed by the High Court in the impugned judgment or,,

observations made by us. We further observe that bail application to be filed by the appellants under Section 439 Cr.P.C. be considered and decided,,

expeditiously. The order dated 12.07.2018 having been set aside by the High Court, which order having been confirmed by this Court, the appellant,",,

Villayutham Nagu is to surrender before the Special Court, Omerga. All the appeals are dismissed subject to liberty granted to the appellants as",,

above.,,