Tamizharasi and another Vs. Assistant Director, Narcotic Control Bureau 1996 Cri LJ 208 k

Facts of the Case

A common question of law has been urged before us in all these three habeas corpus petitions and hence it would be better to dispose of all these petitions through a common order. HCP No. 1676 of 1994 is capable of being disposed of on factual material, without legal ramifications, affecting its termination.

1. Petitioner Tamizharasi is the wife of Arumugham, whose liberty she has coveted in this Habeas Corpus Petition, alleging that he has been kept under illegal detention in Central Prison, Madras, on and after 27-9-1994. The averments in her affidavit show that Arumugham was arrested on 27-6-1994 from his residence. Neither documents nor contraband stood recovered from him. However, it is alleged by the prosecution that he is involved in the export of certain Narcotic Drugs which were seized in a foreign country. Arumugham was remanded to judicial custody on 26-8-1994. Every 14 days, remand was being extended. The period of 90 days expired on 27-9-1994 and even by then the respondent had not preferred any complaint. Arumugham had earlier preferred a bail application seeking his release, but the same was dismissed on 24-7-1994. A second application for bail was moved by him, which was pending at or about the time when the 90 days period expired. According to her affidavit, it was specifically argued before the Special Judge that the detenu was ready to furnish surety and hence he may be enlarged on bail, since the respondent had defaulted in filing the complaint within a period of 90 days. However, the bail plea of the detenu was denied and the remand was extended.

2. Facts in HCP No. 1692 of 1994 : Petitioner Vijayalakshmi is the wife of Y. V. Nagaraj, who has been similarly detained, in Central Prison, Madras, as detenu Arumugham, concerned in HCP No. 1675 of 1994. It is also evident that Arumugham and Nagaraj are involved in the same crime. It appears that Nagaraj was preventively detained by an order of detention clamped under the provisions of PIT NDPS Act. We were informed by counsel on either side that the said preventive order has since been quashed by this Court and the respondent had taken up the matter to the Supreme Court. As in HCP No. 1675 of 1994, Y. V. Nagaraj was also arrested on 27-6-1994 and the period of 90 days expired on 27-9-1994. A bail application was preferred on behalf of Nagaraj before the Special Court seeking release on bail on default made by the respondent in filing the complaint. Bail plea was negative while remand was directed to be continued. The dismissal of the latest bail application was on 12-10-1994. It appears that the learned Special Judge was not inclined to act under the proviso to S. 167(2) of the Code of Criminal Procedure in view of the pronouncement of a learned single Judge of this Court in Seemsiraj v. Asstt. Collector, Central Excise, (1992) Mad LW (Cri) 387 : (1993 Cri LJ 844) holding that proviso to sub-sec. (2) of S. 167, Cr.P.C. will have no application, where a person has been charged, under any of the offences falling within the scope of Narcotic Drugs and Psychotropic Substances Act.

3. Facts in HCP No. 1676 of 1994 : Petitioner Mohammed Shabeer is the detenu himself. He was arrested on 15-5-1993 for alleged commission of an offence punishable under the NDPS Act. The case of the prosecution appears to be that the petitioner was found travelling in a lorry from which heroin was seized. Arrest memo was served on the petitioner at 11.00 p.m. on 15-5-1993 and he was produced for remand only on 18-5-1993. His remand was extended from time to time. The 90 days period expired on 17-8-1993. Thereafter, the petitioner became entitled to grant of bail under proviso to S. 167(2) of the Code of Criminal Procedure. Petitioner is now incarcerated in Central Prison, Salem. It is not in dispute that complaint against the petitioner stood filed on 27-9-1993 and till such date, petitioner had not chosen to exercise his right pleading for release on bail on the ground of default made by the prosecution.

Issues Involved

The main issues involved in this case are 

1. The question of remand time for the accused under NDPScases?

2. The question of bail plea for a remanded person under NDPS cases ?

3. whether it is right to detain a person after 90 days of remand in police custody?

Contentions of petitioner

The counsel for petitioner contended that Courts do not possess any inherent power to remand and if at all it must be traced to statutory provisions. According to him, the source of power to grant bail even under the provisions of the NDPS Act will have to be traced to S. 437 or 439 of the Code of Criminal Procedure, as the case may be, and not to S. 37 of the NDPS Act, which tends to contemplate further limitations, while considering the plea for bail, made by a person allegedly involved in the commission of an offence, under the NDPS Act. Mr. B. Kumar emphatically submitted, that on the default committed by the prosecution, in not laying a complaint within 90 days from the date of arrest of the person accused of an offence under the NDPS Act, if such person was prepared to and does furnish bail, he shall have to be released on bail, under the said sub-section thereby putting an embargo on the power of the Magistrate to grant further extension of remand. He urged, that there should not be any linkage between the merits of the case and entitlement of a person accused of an offence punishable under the provisions of the NDPS Act, to be released under the proviso to S. 167(2) of the Code of Criminal Procedure. He further submitted that S. 37 of the NDPS Act, can have no role to play, in that contingency, for the person concerned was sought to be released on bail on the ground of default committed by the prosecution. He further added, that if this was not the test, the whole section would become unconstitutional, in view of the provisions of Art. 21 of the Constitution, for a person allegedly involved in commission of a crime under the NDPS Act can be kept in prison indefinitely. Nextly, he submitted, that the non obstante clause, either in S. 36A of the Act or S. 37 of the Act, does not exclude operation of the provisions of S. 167(2) of the Code of Criminal Procedure. If it were to be held otherwise, apparently the Magistrate will have no power of remand. Several decisions rendered by various Courts have been placed for our scrutiny by Mr. B. Kumar, which we will refer to and consider at the appropriate time.

Contentions of respondent 

1. The counsel for respondent contented that under the scheme of the Special Acts, though procedure may be traceable to the provisions of Code of Criminal Procedure, the special provisions found under the Special Act, will have to be held as overriding the general provisions. By a comparison of similar provisions under the TADA Act, Mr. Asokan submitted, that while interpreting S. 36A(1)(c) of the Act, wherein reference has been made to the provisions of S. 167 of the Code of Criminal Procedure, the same may have to be read, in conjunction with, the embargo contained under S. 37 of the NDPS Act. He argued, that since extension of time for laying of the charge sheet, had not been afforded, either simpliciter or at the instance of the Public Prosecutor, as could be done under the provisions of the TADA Act, it must be deemed, that there was no restriction, whatever, under the NDPS Act for laying of a complaint or a charge sheet within any specified time schedule. If at all, release on bail or otherwise can be considered at any stage, only within the frame work of S. 37 of the Act. By referring to the observations of the Supreme Court in Narcotics Control Bureau v. Kishan Lal, , Mr. Asokan contended that the power to grant bail under any of the provisions of the Code of Criminal Procedure must necessarily be subject to the conditions mentioned in S. 37 of the NDPS Act. He then submitted, that TADA Act was not a permanent Act, while the NDPS Act has permanence and therefore irrespective of the stage at which the investigation was pending in a given case, bail, if at all, can be ordered only on merits under S. 37 of the Act, which will have to be read as part of S. 36A of the Act, and therefore it will be idle to contend, that bail on default of the prosecution, could be ordered in view of the provisions of S. 167(2) of the Code of Criminal Procedure. He also submitted that once the detenus concerned had moved the Special Court for bail on the ground of default committed by the prosecution and those petitions stood dismissed, further action by the detenus concerned will only be feasible by challenging the orders refusing bail, before a learned single Judge and an entry cannot be sought into this Court by means of Habeas Corpus Petitions. 

2. The counsel for respondent claims that Arumugham is an accused along with six others in an offence involving seizure of 2.5 tons of Hashish at Port Ashodode, Israel. So is Y. V. Nagaraj. It was found that the consignment shipped from Madras contained Hashish concealed in 180 cartons of vacuum flasks, which stood seized at Port Ashodode. Information about involvement of persons concerned in this clandestine export was sought to be collected. On the basis of information received, certain premises at Madras were searched by the Officers of Narcotic Control Bureau. Search had resulted in seizure of incriminating documents. Persons connected with those searches were summoned to the office of the respondent and their voluntary confession statements were recorded. Those statements indicated their respective roles in drug trafficking.

Legal Provisions

• Under CrPC 

Section 167 

Section 437

Section 439

• Under NDPS Act

Section 36

Section 37

• Under Constitution of India

Article21

Legal Reasoning

• Under CrPC

Section 167

Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

Section 437

When bail may be taken in case of non- bailable offence. 

(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his  guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

Section 439

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody

• Under NDPS Act

Section 36

(1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification.

(2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Explanation.—In this subsection, “High Court ” means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.

Section 37

(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 2[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.

• Under Constitution of India

Article 21

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

Judgement

As far as HCP No. 1675 of 1994 and HCP No. 1692 of 1994 are concerned, it was fairly stated by Mr. K. Asokan, that till today, complaint has not been filed, for information is yet to be received from foreign countries, in spite of efforts having been made through Delhi authorities even from August, 1994. More than three months have elapsed. As we have already stated, there is no scope for extension of remand period, under the available provisions in the NDPS Act, contra distinguished from certain salient amended provisions of the TADA Act. We are satisfied that, on default committed by the prosecution, detenu Arumugham (HCP No. 1675 of 1994) and detenu Y. V. Nagaraj (HCP No. 1692 of 1994) will be entitled to be released on bail, since they are prepared to furnish bail. We are not inclined to accede to the argument of Mr. Asokan, that since the Special Court had chosen to decline the plea for bail made by these two detenus on default made by the prosecution, the remedy, if any, cannot be through issue of a habeas, but only through a petition invoking the inherent powers of this court, under S. 482 of the Code of Criminal Procedure. Once it is evident that the Magistrate had no power to extend remand, on the expiry of 90 days, on default committed by the respondent, more so, when they were prepared to furnish bail, further incarceration will have to be necessarily held to be illegal. In that event, seeking the issue of ‘habeas’, for release from illegal detention, will be a just and proper remedy, which cannot be refused merely because an alternate remedy could also have been chosen. Illegality of detention would certainly entitled these two detenus to invoke our constitutional powers for issue of a habeas. On the facts available, application of proviso to S. 167(2) of the Code of Criminal Procedure, these two detenus will be entitled to be released on bail. While directing release on bail, of these two detenus, certain conditions will have to be imposed, for their availability, for the further processing of the prosecution case.

Conclusion

In this case the question arises was that of the NDPS cases  TADA Cases about the bail issues.here in this case three persons were arrested by the NDPS officers and detained  beyond the 90 days of remand and couldn’t find conclusive evidence based on. the allegations upon them and upon the sections  of NDPS allowed them to increase the days of remand.it is actually violation of the article 21  constitution of India .the judgement made an impact for the questions arises of the basic rights by availing them bail  the habeas corpus petition  by them

written by SHIBIN P intern under legal vidhiya