1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (Criminal Jurisdiction) Friday, the Fourth day of February Two Thousand Eleven PRESENT The Hon`ble Mr.Justice V.PERIYA KARUPPIAH CRL OP(MD)No.541 of 2011 S. GANDHI :PETITIONER / ACCUSED NO.1 -Vs- THE STATE REP. BY THE INSPECTOR OF POLICE, CBCID TUTICORIN WING, TUTICORIN DISTRICT. CRIME NO.4/2010 :RESPONDENT / COMPLAINANT For Petitioner : M/S. S.PALANIVELAYUTHAM Advocate For Respondent : MRS.S.DEVASENA, Govt. Advocate(Crl. Side) PETITION FOR BAIL Under Sec.439 Cr.P.C. ORDER:The Court Made the following order:- The petitioner, who was arrested on 06.08.2010 by the respondent police in crime No.4 of 2010 for the alleged offence punishable under Section 7(1) of Prevention of Corruption Act, 1988 and Sections 342, 353, 365, 167 and 219 read with 34 I.P.C with Section 8(c) read with 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985, has come forward with this petition, seeking bail. 2.Heard Mr.S.Palanivelayutham, learned counsel appearing for the petitioner and Mrs.S.Devasena, learned Government Advocate (criminal side) appearing for the State. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner was ranked as A1 for having committed the offence punishable under Sections 7(1) of Prevention of Corruption Act, 1988 and Sections 342, 353, 365, 167 and 219 read with 34 I.P.C with Section 8(c) read with 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985. He would further submit in his argument that the petitioner was arrested and was in judicial custody from 06.08.2010 onwards and as on today, he has completed 180 days and yet, no charge sheet has been filed in this case. 4.He would further submit in his argument that the respondent has also not applied for and obtained any extension of investigation period before the Special Court for N.D.P.S. Act cases. He would further submit that the 2nd accused, who was on the equal footing with the petitioner and the 3rd accused was already granted bail by this Court in an earlier occasion on 12.01.2011 in Crl.O.P.No.428 of 2011. He would further submit in his argument that the 2nd accused is the person, who seized the contraband and was ultimately responsible for the production of the said contraband, however, the present petitioner is not granted bail even after the lapse of 180 days. He would further submit that the petitioner is also entitled to a statutory bail under Section 36(A) of N.D.P.S.Act coupled with Section 167 (2) Cr.P.C. and if he is released on bail, he will not abscond and he will co-operate for further investigation of the case and he is ready to abide https://hcservices.ecourts.gov.in/hcservices/ 2 any condition likely to be imposed against him and therefore, he would request the Court, to grant bail in favour of the petitioner/A1. 5.The learned Government Advocate (criminal side) would submit in her argument that the petitioner along with the other accused had committed serious offence and thereby caused illegal detention of three persons in crime No.10 of 2006 of Tuticorin N.I.B. C.I.D. and had seized 24 kilograms of kanja from a Car and deposited before the Special Court, Madurai and on the subsequent investigation made by C.B.C.I.D., it would reveal that it is a false case and the petitioner including other accused had manipulated documents and had acted for the purpose of extracting money by using criminal force by registering a false case and such an offence is against the public policy and society. She would further submit in her argument that the investigation is still pending and the quantity of kanja seized from the accused persons is more than 24 kilograms and it is a commercial quantity and the provision of Section 37 of N.D.P.S. Act would squarely apply to the petitioner and therefore, the petitioner is not entitled to any bail at the hands of this Court, even though his custody was more than 180 days. 6.She would further submit in her argument that the respondent has applied before the Special Court for N.D.P.S. Act, Madurai for extension of investigation period and it is likely to be ordered. She would also submit that if for any reason, the petitioner is released on bail, he would involve in tampering of witnesses and therefore, the bail petition may not be considered for the petitioner. 7.I have given anxious thoughts to the arguments advanced on either side. 8.The petitioner herein is ranked as A1. The accusation against the petitioner and other accused would be that they were working as Inspector of Police, Sub Inspector of Police and Head Constable in N.I.B. C.I.D., Tuticorin and they have registered an F.I.R. against three persons viz., Mr.M.Anumohan, Mr.Ajaykumar and Mr.Sarun in crime No.10 of 2006 as if they were found in illegal possession of 12 kilograms of kanja at the back seat and another 12 kilograms of kanja at the dickey of a car in two separate gunny bags and the said kanja was seized by the 2nd accused from the said three persons and thereafter, he seized the Maruti car also. Subsequently, the said case filed by the petitioner and other two accused was found to be a false one, when the investigation was transferred to the file of C.B.C.I.D. and the case was closed as false one. According to the learned Government Advocate (criminal side), the petitioner and other two accused were involved in launching or registering the false case against the three accused for the purpose of extracting money by using criminal force According to the submission of the learned Government Advocate (criminal side) they were doing crimes against the public policy as well as the society. However, it has been admitted that the investigation is still offing and the charge sheet is yet to be filed. 9.It is made known to the Court by the learned counsel appearing for the petitioner that the petitioner was in judicial custody from 06.08.2010 onwards and 180 days as contemplated under Section 36(A) of N.D.P.S. Act was https://hcservices.ecourts.gov.in/hcservices/ 3 over by 01.02.2011 and today is 182nd day and no charge sheet has been filed till today. It is also brought to the notice of this Court that no order of extension for the investigation was also obtained by the respondent police However, the learned Government Advocate (criminal side) would submit that the respondent police filed a petition for extension before the Special Court for N.D.P.S. Act cases. No proof has been placed before this Court to substantiate the same nor any order has been passed regarding the extension of the investigation time and hence, it is clear that as on today, there is no order passed by the Special Court for extension of the period of investigation over the statutory period of 180 days. 10.This Court, on an earlier occasion, has dismissed the bail plea of the petitioner, after a detailed discussion in Crl.O.P.(MD) No.13368 of 2010 dated 22.12.2010. However, the statutory period as stipulated under Section 36(A) of the Act is over by 01.02.2011 and therefore, it may be a change of circumstances in the case. Similarly, this Court had passed an order of bail in favour of the 2nd accused in Crl.O.P.(MD) No.428 of 2011 on 12.01.2011. 11.According to the Section 37 of the N.D.P.S. Act, no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application and if the Public Prosecutor opposes so, reasonable grounds are made out for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail. The two conditions imposed are necessarily to be complied with in respect of the offence committed for any offence exceeding the commercial quantity under the Act. No doubt, it is true that the seized kanja is more than 20 kilograms i.e. 24 kilograms, which is a commercial quantity Therefore, the release of the accused shall be strictly in accordance with Section 37 of the Act. In this case, the Public Prosecutor opposes. The petitioner is the Inspector of Police at the time when the case in crime No.10 of 2006 was filed by him and the contraband was seized from those alleged accused persons, which was found to be untrue later. Therefore, this Court can primafacie see the possession of kanja to an extent of 24 kilograms was with the petitioner also along with other accused 2 and 3 Therefore, we cannot say at this stage that the petitioner is not guilty of committing any offence, however, it has to be decided only in the trial. 12.As far as the next condition is concerned, the petitioner is not likely to commit any offence while on bail. No doubt, if the petitioner is released on bail, he cannot act as Inspector of Police since he is under suspension. However, on an intensive reading of Section 37(1)(b) (i) (ii) of the Act, all the conditions imposed must be present for the grant of bail. But, this Court could see that the petitioner was primafacie found to be in possession of the contraband and therefore, it cannot be seen that he is not guilty of such offence. Therefore, the prohibition for releasing the petitioner on bail under Section 37 of the Act is operating against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 4 13.However, it was argued by the petitioner that the statutory period of 180 days was completed and no charge sheet has been filed till today and therefore, he is entitled to get a statutory bail. The combined reading of Section 36(A) (4) of N.D.P.S.Act and Section 167 (2) Cr.P.C would go to show that the prohibition for remanding such an accused for over and above the said statutory period is not feasible for the Judicial Magistrate concerned and he is empowered to pass an order of bail. It is not a rule that on the expiry of 180 days fixed for N.D.P.S offences as statutory period of investigation, this Court shall release the petitioner on bail. Therefore, the said argument of the petitioner's counsel cannot also be sustained. 14.Apart from that, the learned counsel appearing for the petitioner would submit in his argument that the co-accused/A2 was released on bail in Crl.O.P.(MD) No.428 of 2011 on 12.01.2011 and since the petitioner is also on the same footing, he may be granted bail in par with the second accused. 15.On a careful perusal of the said order, this Court had come to the conclusion on the representation of the learned Government Advocate (criminal side) that the investigation was completed, the order of bail has been granted. In the present petitioner's case itself, it would go to show that the investigation has not been completed even after the completion of the statutory period of 180 days. Therefore, the order passed by this Court on a mistaken conception cannot be taken advantage by the petitioner. 16.For the forgoing reasons, this Court is not inclined to grant bail to the petitioner/1st accused and the petition for bail is dismissed accordingly. However, this Court will not restrict the petitioner to approach the Judicial Magistrate concerned, to seek his remedy under Section 36(A)(4) of the Act read with 167(2) Cr.P.C. for appropriate relief. sd/- 04/02/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO: 1.The Judicial Magistrate No:I, Kovilpatti, Tuticorin District. 2.-Do- Thro' The Chief Judicial Magistrate, Tuticorin. 3.The Special Judge for NDPS Act Cases, Madurai. 4.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 5.The Superintendent, Central Prison, Palayamkottai, Tirunelveli District. 6.The Inspector of Police, CBCID, Tuticorin Wing, Tuticorin District. +1CC to M/S. S.PALANIVELAYUTHAM Advocate SR.No.4369. RP/04.02.2011/4P/8C. ORDER IN CRL OP(MD) No.541 of 2011 Date :04/02/2011. https://hcservices.ecourts.gov.in/hcservices/