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TMI Blog2021 (10) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on behalf of the State demonstrates that he has criminal antecedents and there are at least four cases registered and pending against him pertaining to the offences under the NDPS Act. Therefore, stringent conditions need to be imposed, even if bail is granted to the Applicant. In this context, in a number of bail applications filed before this Court by foreign nationals, particularly pertaining to offences under the NDPS Act, submissions have been made on behalf of the prosecution that such accused persons do not have valid passports and visas. They deliberately carry no papers to ascertain their identities. Most of such accused persons are repeat offenders. They do not disclose their genuine and correct identities and when they are apprehended, they give fictitious names to the investigating authorities, thereby further complicating the cases. As a result, after they are granted bail, it is extremely difficult to ensure their presence to face trial. They also further indulge in criminal activities concerning offences under the NDPS Act. In the present case, the Applicant has stated in the present bail application at paragraph 9 that he is a Nigerian and that he has lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that at 6:25p.m., the team of Respondent no.1 reached the house of the Applicant. It is recorded that there was some resistance, wherein the Officer of the Respondent no.1 suffered minor injuries and that the Applicant and another person were taken into control. The panchanama records how the house was searched and that the Applicant as well as the other person were then taken to the Police Station. It is then recorded that contraband was recovered and upon the details of the contraband being recorded, the panchanama proceedings were completed at 1:20 a.m. on 08.03.2021. The learned Counsel further submitted that the Applicant was kept in the Police Station on the entire day of 08.03.2021 and thereafter, on 09.03.2021, he was produced before the Magistrate. 4. The learned Counsel then relied upon the contents of the application for judicial custody filed on behalf of the Respondent no.1, wherein it was stated that the Applicant along with the other accused person were both placed under arrest at 5:30 p.m. on 08.03.2021. It was submitted that such statement made in the application was immaterial to determine the period of 24 hours under Article 22(2) of the Constitution because, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case is squarely covered by judgment of this Court in the case of Suaibo Ibow Casamma vs. Union of India 1994(1) Bom CR 64, wherein this Court in identical circumstances, held that the Applicant was entitled to be released on bail due to violation of his rights under Articles 21 and 22(2) of the Constitution. 7. On the other hand, Mr. Mahesh Amonkar, the learned Additional Public Prosecutor appearing on behalf of the Respondents, submitted that the sole ground raised on behalf of the Applicant was without any substance, for the reason that the Applicant was actually arrested at 5:30 p.m. on 07.03.2021 and he was produced before the Magistrate at 10:00 a.m. on 08.03.2021 and later at 3:00 p.m. on the same day before the Special Court. It was submitted that reliance placed on the contents of the panchanama on behalf of the Applicant would not be of any help to the Applicant because the procedure of searching the premises of the Applicant was followed in a strictly legal manner and the Applicant had voluntarily accompanied the Respondent no.1 to the Police Station for recording of his statement and the panchanama proceedings stood completed at 1:30 a.m. on 08.03.2021. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was raided at about 6:25 p.m. on 07.03.2021. It is recorded that when the Applicant and the other accused person saw the team of Respondent no.1 at the door, they resisted entry as a result of which, one of the Officers of the Respondent no.1 suffered minor injuries. It is significant that in the panchanama itself, it is specifically recorded that the Applicant and the other person were taken into control by the team of Respondent no.1. Thereafter, the panchanama records in detail as to the manner in which the house was searched and records the details of the contraband recovered from the said house. It is also recorded that the Applicant was taken to the Police Station at about 11:30 p.m. and that the panchanama proceedings were completed at 1:20 a.m. The contents of the panchanama clearly indicate that when the team of Respondent no.1 reached the house of the Applicant at 6:25 p.m. on 07.03.2021, the members of the team took the Applicant in their control. Throughout the proceedings of the panchanama, the Applicant was not free to move out and he was kept in control by the team of Respondent no.1. He was physically taken to the Police Station where the panchanama proceedings wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 22. Looking to the above facts and circumstances, Shri Patwardhan has rightly impressed upon me the necessary of making a few general observations in the larger interests of upholding the rule of law. Having regard to the settled position in law and having regard to the scheme of the provisions of Section 104 of the Customs Act and Section 42 of the N.D.P.S. Act it is high time that the investigating officers realise that the moment the accused was apprehended and put under complete control of the investigating officer with absolute restrictions on his movements, his arrest would be complete in law. Merely saying in the remand application that the arrest was recorded later, may be a day or two later, is unlikely to convince any Court of law and reflects very poorly on the investigating agency. Recording of the seizure panchanama and statements which are generally the two immediate steps taken could not have taken more than say 12 hours. If that be so, nothing prevented the investigation agency to produce the accused before the Magistrate within the stipulated period of 24 hours. This is not only the mandate of Section 57 and Section 167 of the Code of Criminal Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order. 67. At the time when the appellant moved for bail, she was in judicial custody pursuant to orders of remand passed by the learned CJM/Special Judge. The appellant did not challenge the orders of remand dated 24-10- 2008, 3-11-2008, 17-11-2008 and subsequent orders. In the absence of challenge to these orders of remand passed by the competent court, the appellant cannot be set at liberty on the alleged plea that there was violation of Article 22(2) by the police. 12. The said observations were made by the Hon ble Supreme Court in the case of Pragyna Singh Thakur (supra) in the backdrop of a contention raised on behalf of the Appellant therein that she was entitled to default bail under Section 167(2) of the Cr.P.C. It is in the context of such an issue pertaining to the right of the Accused to default bail under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression availed of does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In view of the several decisions referred to above and the requirements prescribed by clause (a)(ii) of the proviso read with Explanation I to Section 167(2) of the Code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 30. In this background, the expression availed of does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct. 14. In the case of M. Ravindran (supra), a three Judge Bench of the Hon ble Supreme Court, in the context of the earlier judgment in the case of Pragyna Singh Thakur (supra) held as follows: 22.2. It is pertinent to note that the two-Judge Bench in Nirala Yadav has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te his rights, the same cannot be frustrated by holding that subsequently an order has been passed sending the Applicant/Accused to judicial custody. 16. In the present case, a perusal of the documents shows that on 08.03.2021 itself, an application for bail was moved on behalf of the Applicant before the Magistrate. In the said application, a specific ground was taken regarding violation of the rights available to the Applicant under the Constitution. When this application was moved before the Magistrate on 08.03.2021, no orders were passed and when the Applicant was actually produced before the Magistrate on the morning on 09.03.2021, the Magistrate simply directed that the Applicant be produced before the Special Court concerning NDPS offences. At this stage, the Applicant was in the custody of the Respondent no.1 and he had specifically raised the aforesaid issues regarding his illegal detention. 17. Even before the Special Court, the Respondent no.1 only sought judicial custody of the Applicant and the Special Court directed the Applicant to be placed in judicial custody. 18. The application for bail filed on behalf of the Applicant on 08.03.2021, came up for consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant is entitled for grant of bail on the sole ground raised in the present application. 21. But, at the same time, this Court cannot be oblivious of the fact that the Applicant is alleged to be involved in serious offences under the NDPS Act. The reply filed on behalf of the State demonstrates that he has criminal antecedents and there are at least four cases registered and pending against him pertaining to the offences under the NDPS Act. Therefore, stringent conditions need to be imposed, even if bail is granted to the Applicant. 22. In this context, in a number of bail applications filed before this Court by foreign nationals, particularly pertaining to offences under the NDPS Act, submissions have been made on behalf of the prosecution that such accused persons do not have valid passports and visas. They deliberately carry no papers to ascertain their identities. Most of such accused persons are repeat offenders. They do not disclose their genuine and correct identities and when they are apprehended, they give fictitious names to the investigating authorities, thereby further complicating the cases. As a result, after they are granted bail, it is extremely diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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