Srinivasan @ Seenu v. State Rep.By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 30.03.2023
CORAM
THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM Srinivasan @ Seenu ... Petitioner Vs.
State, represented by the Inspector of Police, H-5, New Washermenpet Police Station, Chennai 600 081.
Cr.No.402 /2022 ... Respondent Criminal Revision filed under Section 397 and 401 of Cr.P.C., to call for the records relating to Crl.M.P.no.6410 of 2022 on the file of the Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai and set aside the order dated 30.12.2022.
For Petitioner : Mr. M.G.Martin Manivannan For Respondent : Mr.R.Vinoth Raja, GA, (crl.side)
O R D E R
This criminal revision has been filed challenging the order passed in Crl.M.P.No.6410 of 2022, dated 30.12.2022 by the learned Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai, in and by 1/9
which, the learned Principal Special Judge has dismissed the bail application filed by the petitioner under section 167(2) Cr.P.C.
2. The learned counsel appearing for the petitioner contended that the respondent police registered a case against the petitioner and other persons in Cr.No.402 of 2022 for the offences punishable under sections 8(c), r/w.22(C) of NDPS Act, 1985. The petitioner/A1 was arrested on 16.06.2022 and remanded to judicial custody. After the expiry of statutory period of 180 days, the respondent police, has not filed a final report. Hence the petitioner filed statutory bail application before the trial court. The trial court, by passing the impugned order dated 30.12.2022, dismissed the bail petition on the ground that the application filed by the prosecution in Crl.M.P.No.6329 of 2022 on 8.12.2022, seeking extension of statutory period of investigation is pending consideration and the same is posted for further proceedings.
The learned Special Judge, without deciding the petition seeking extension of statutory period of investigation, dismissed the statutory bail application. It is against the principle stated by the Hon'ble Supreme Court. He further submitted that petition seeking extension of statutory period of investigation was allowed by the learned Judge subsequently only on 19.01.2023 and not decided on the same date when deciding the statutory bail application.
dismissing the statutory bail application on the ground that merely the prosecution has filed a petition seeking extension of time for completing investigation, will take away the right of the petitioner/accused. Therefore, the petitioner is entitled for statutory bail. Thus, he seeks to set aside the impugned order and grant bail to the petitioner.
3. The learned Govt. Advocate (crl.side) submitted that the prosecution has filed an application seeking extension of statutory period of investigation on 08.12.2022 before completion of 180 days and it was received by the learned Judge in Crl.M.P.No.6329 of 2022 and on 19.01.2023, the same was allowed by extending time for further period of 180 days for completion of investigation. Hence, the petitioner is not entitled for statutory bail. Therefore, there is no reason to interfere with the order passed by the trial court and pleaded to dismiss the criminal revision petition.
4. I have considered the submissions made on either side and perused the entire materials available on record.
5. On a perusal of records, it is seen that the respondent police registered a case against the petitioner and other persons in Cr.No.402/2022 for the 3/9
offence punishable under sections 8(c), r/w.22(C) of NDPS Act, 1985 for illegal possession of 21 MMDA ECSTACY tablets weighing 12 grams 23 milligram, pursuant to which, the respondent police arrested the petitioner/A1 along with accused persons and remanded them to judicial custody on 16.06.2022. Since the respondent police has not filed final report within 180 days as mandated under section 167(2) of Cr.P.C., it filed application seeking time for completing investigation under section 36(A)(4) of NDPS Act on 08.12.2022 before completion of 180 days. Further, it is noticed that the petitioner filed statutory bail application on 14.12.2022, after completion of 180 days. It is noticed that in the impugned order, the learned trial judge received the extension application filed by the respondent police in Crl.MP.No.6329 of 2022 on 8.12.2022.
But he has not decided the petition in Crl.M.P.No.6329 of 2022 seeking extension, while deciding statutory bail application filed by the petitioner in Crl.M.P.No.6410 of 2022. Further, it is noticed that only on 19.1.2023, the learned trial Judge ordered Crl.M.P.No.6329 of 2022 seeking extension of time for investigation.
6. It is the settled principle by the Supreme court in the case of Sanjay Dutt Vs. State Through B.I, Bombay (II) (1994(5) SCC page 410) which has been re-affirmed by subsequent judgment of the Supreme Court in State of 4/9
Madhya Pradesh Vs. Rustam, reported in 1995 SCC Crl.830 that the court is to require to examine the availability of the right on the compulsive bail on the date of its considering the question of bail and not barely on the date of the presentation of the petition for bail. Further, it is also held that if application for grant of bail on such default as well as prayer for extension of time to complete investigation made, both to be considered together and bail can be granted only on rejection of prayer for extension of time. In this case, the learned Judge not followed the principle as stated by the Honourable Supreme Court. Considering the fact that the statutory bail application was filed on 14.12.
2022, but undeciding the application for extension of time for investigation filed by the respondent police, the trial judge has dismissed the statutory bail application alone on 30.12.2022 and posted the application for extension of time for investigation on 11.01.2023 and 12.01.2023 and finally on 19.01.2023 allowed that application. Thus it is clear that in the instant case, the learned trial Judge has not considered both the applications on the same day and without deciding Crl.M.P.No.6329 of 2022 seeking time extension application filed by the prosecution, he dismissed the statutory bail application filed by the petitioner which is violation of the principle laid down by the Supreme Court in cases cited supra. Therefore, the impugned order passed by the trial judge is unsustainable and the same is liable to be set aside.
of the foregoing discussions, the impugned order is set aside and statutory bail is granted to the petitioner.
7.Accordingly, the impugned order dated 30.12.2022 passed in Crl.M.P.No.6410 of 2022 by the learned Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai, is set aside and Statutory Bail is granted to the petitioner and the petitioner is ordered to be released on bail on executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each, before the XV Metropolitan Magistrate, G.T.Court, Chennai on the following conditions;
(a) the sureties shall affix their photographs and left thumb impression in the surety bond and the Court concerned may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity;
(b) the petitioner shall not tamper with evidence or witness either during investigation or trial;
(c) the petitioner to appear before the respondent police on the first working day of every month at 10.30 a.m., until further orders.
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(d) the petitioner shall not abscond either during investigation or trial;
(e) on breach of any of the aforesaid conditions, the learned Magistrate/ Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji Vs. State of Kerala [(2005) AIR SCW 5560]; and;
(f) if the accused thereafter absconds, a fresh FIR can be registered under Section 229-A IPC.
8. With the above directions, this Criminal Revision Case is allowed. 30.03.2023 msr Index:Yes/No Internet:Yes/No To 1.The Principal Special Judge Principal Special Court under EC & NDPS Act, Chennai 2.The XV Metropolitan Magistrate, G.T.Court, Chennai 2.The Inspector of Police, H-5, New Washermenpet Police Station, Chennai 600 081.
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3.The Public Prosecutor, High Court, Madras.
4. The Superintendent, Central Prison, Puzhal, Chennai.
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V. SIVAGNANAM, J.
msr 30.03.2023 9/9