Senthilkumar v. The Inspector Of Police,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Wednesday, the Twenty Fourth day of October Two Thousand Eighteen PRESENT The Hon`ble Mr.Justice G.K.ILANTHIRAIYAN CRL OP(MD) No.14449 of 2018 1 SENTHILKUMAR 2 THAYENTHIRAN ... PETITIONERS / ACCUSED NO.2 & 3 Vs STATE REP. BY THE INSPECTOR OF POLICE, NIB CID, THENI, THENI DISTRICT.
CR.NO.81 OF 2018 ... RESPONDENT / COMPLAINANT For Petitioner : M/S.M.RAMU Advocate For Respondent : MR.A.P.G.OHM CHAIRMA PRABHU, Government Advocate (Crl.Side) PETITION FOR BAIL Under Sec. 439 Cr.P.C.
ORDER : The Court Made the following order :- The petitioners/A2 and A3, who were arrested and remanded to judicial custody on 01.06.2018 for the offence under Sections 8(c) read with 20(b)(ii) (C) and 29(1) and 25 of N.D.P.S. Act. in crime No.81 of 2018 on the file of the respondent police, seeks bail. 2.The case of the prosecution is that on 01.06.2018 at about 06.15 a.m., on secret information, the respondent along with police party conducted vehicle checkup near Lakshmi Flour mill, Periyakulam - Theni bye pass road. At that time, the respondent police intercepted the vehicle bearing Registration No.TN 22 CL 0545 Mahindra Xylo D2 Silver colour car and on search, they found 7 white colour polythene bags containing each 30 kg of ganja. On the basis of the confession of A3, the petitioners were arrested and remanded to judicial custody and a case has been registered in crime No.81 of 2018.
3.The learned counsel appearing for the petitioner would submit that the petitioners are innocent persons and they have been falsely implicated in this case. The respondent police did not follow the mandatory provisions under Sections 42, 50 and 52(A) of N.D.P.S. Act. The alleged FIR would clearly show that the provision of
Section 42 of the Act is mandatory to record secret information prior intimation to higher authorities and the information should have forwarded to the higher authorities for further action. He would further submit that as per Section 50 of NDPS Act, the petitioners ought to have been produced before the gazetted officer or before the Judicial Magistrate. Admittedly, the petitioners were issued search memo and explained their rights to produce before the gazetted officer or before the Judicial Magistrate, for which, they declined and permitted the police officer himself to conduct. He would further contend that confession statement of the petitioners were recorded from 09.40 a.m. to 10.40 a.m. on 01.06.2018. The contraband were seized from the accused persons at about 12.40 hours to 13.15 hours. At about 13.
10 hours, the petitioners were arrested and at about, 13.15 hours, they reached the police station and registered the case in crime No.81 of 2018. Whereas, in the arrest intimation recorded at the time of 13.20 hours, crime number has been reflected and also in the arrest memo. Therefore, it is completely a false case foisted as against the petitioners for statistical purpose. Therefore, he prayed for bail. 4.The learned Government Advocate (criminal side) would submit by way of filing counter that the procedural lapse cannot be considered at the time of considering the bail petition, since the petitioners and another were in possession of 210 kgs of ganga, which is a commercial quantity. The investigation is pending and the respondent is yet to file charge sheet.
He would further contend that Section 37 of NDPS Act, clearly states that no person can be an accused for offences involving commercial quantity shall be released on bail unless 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. The limitations on granting of bail specified in clause (b ) of sub-section (1) of NDPS Act are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting bail.
Insofar the law relating to enlarging and NDPS offender found with commercial quantity, it is well settled that by the reading of the non-obstinate clause in Section 37 of NDPS Act that the power to grant bail to a person accused of having committed offence under NDPS Act is not only subject to the limitations imposed under Section 439 of Code of Criminal Procedure, 1973, it is also subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub section (i) of Section 37 of NDPS Act and apart from giving an opportunity to the Public Prosecutor to oppose the application for such release the other twin conditions 1)the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of alleged offence' and (ii) that he is not likely to commit any no offence while on bail, have to be satisfied.
Inasmuch as there is no materials submitted to prove that the petitioner/accused herein is innocent. Thus, he prayed for dismissal of the petition.
5.It is seen from the arrest intimation and memo, it was recorded at 13.20 hours and it contains crime No.81 of 2018. Further, the petitioners are not having any previous case. Further, under Section 37 of NDPS Act, 1995, this Court satisfied that there are reasonable grounds for believing that the petitioners are not guilty of the alleged offence. Therefore, this Court is inclined to grant bail to the petitioners.
6.Accordingly, the petitioners are ordered to be released on bail, subject to the following conditions:
(i)each of the petitioners shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand Only) each with two sureties, each for a like sum to the satisfaction of the learned Principal Special Court for EC and NDPS Act, Cases, Madurai;
(ii) the petitioners shall appear before the respondent police daily at 10.30 a.m. until further orders.
sd/- 24/10/2018 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.
TO 1 THE PRINCIPAL SPECIAL COURT FOR EC AND NDPS ACT CASES, MADURAI.
2 THE INSPECTOR OF POLICE, NIB CID, THENI, THENI DISTRICT.
3 THE SUPERINTENDENT, CENTRAL PRISON, MADURAI.
4 THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
+1. CC to M/S.M.RAMU Advocate SR.No.20069
ORDER
IN CRL OP(MD) No.14449 of 2018 Date :24/10/2018 JM/PN/SAR 2/24.10.2018/3P/6C