Venkateshan Balasubramaniyan vs DRI_Bangalore-Crl. Appeal No. 801-2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.801 of 2020
(arising out of SLP (Crl.) No.1452/2019)
VENKATESAN BALASUBRAMANIYAN …APPELLANT(S)
VERSUS
THE INTELLIGENCE OFFICER,
D.R.I. BANGALORE
WITH
…RESPONDENT(S)
CRIMINAL APPEAL NO.802 of 2020 (arising out of SLP (Crl.) No.1820/2019)
VILLAYUTHAM NAGU
VERSUS
THE INTELLIGENCE OFFICER,
D.R.I. BANGALORE
AND
…APPELLANT(S)
…RESPONDENT(S)
CRIMINAL APPEAL NO.803 of 2020 (arising out of SLP (Crl.) No.1443/2019)
VIJAYA KUMAR L.
…APPELLANT(S)
VERSUS
THE INTELLIGENCE OFFICER,
D.R.I. BANGALORE …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
Signature Not Veri fied
Digi tally signed by ARJU N BISHT Date: 2020. 11.20 13:52:23 IST
Reason:
Leave granted. These three appeals have been
filed against the common judgment dated 30.11.2018 of
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the High Court of Judicature at Hyderabad in Criminal
Petition No.10524 of 2018 filed by the respondent
before the High Court. By the impugned judgment
dated 30.11.2018, the petition filed by respondent
Under Section 439(2) Cr.P.C. has been allowed
cancelling the bail granted to the appellants by
order dated 12.07.2018 by Metropolitan Sessions Judge, Hyderabad.
2. The facts and issues in these appeals being
similar, it shall be sufficient to refer to the
pleadings in Criminal Appeal arising out SLP (Crl.)
No.1452 of 2019- Venaktesan Balasubramaniyan Vs. The
Intelligence Officer for deciding all these appeals, brief facts of which are as under:-
2.1 On 11.01.2018, car bearing No. KA 39 M 2117
was intercepted by Directorate of Revenue
Intelligence (hereinafter referred to as
“D.R.I.”), Hyderabad at toll plaza, Kamkole
Village, Munnipalli Mandal, Sangareddy
District, Telangana in which appellants
(driver and two men) were travelling. The
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appellants along with other two persons
introduced themselves on being asked as to
whether they have secreted anything illegal
in the car, the appellant’s replied in
negative. The Officers searched the car and
found false casing behind the rear seats on
the side walls of the boot of the car with
metal doors. The appellants’ opened the door
and few transparent packets with off-white
coloured packets were found in the casing
attached to the walls of the boot. The
appellants’ told that packets were of
Narcotic drug, which were loaded in the car
by a person named Suraj at Omerga, Osmanabad
District Maharashtra, which were to be
delivered at Chennai. The Officers in
presence of Panchas and the appellants opened
the packet and tested the materials in the
packet. The appellants were taken to the
office of D.R.I., Hyderabad. The total
quantity of packets (Methaqualone) weighed to be 45.874 Kgs.
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2.2 On 12.01.2018, the appellants were arrested
in exercise of power conferred under Section
42 of NDPS Act, 1985 (hereinafter referred to
as “Act, 1985”). The D.R.I. officers
prepared a crime report against all the
accused-appellants for commission of offence
under Sections 22, 28 and 29 of NDPS Act and
produced them before the VI Additional CMM,
Hyderabad. The duty Magistrate on 12.01.2018
allowed the application for remand and the
appellants were remanded till 25.01.2018. On
25.01.2018, the appellants-accused persons
were produced before the Special Sessions
Judge Court, D.R.I., Hyderabad. Remand of
the appellants was extended from time to
time. On 10.07.2018 the appellants were
remanded only for two days since 180 days
prescribed for filing charge sheet were coming to an end on 12.07.2018.
2.3 On 12.07.2018, since 180 days had expired,
the appellants filed bail application.
Learned Special Sessions Judge, Hyderabad
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granted bail to the appellants under Section
167(2) Cr.P.C. On 12.07.2018, a letter was
received from the Additional Sessions Judge,
Omerga, Maharashtra asking to handover the
custody of appellants to D.R.I., Bangalore as
they were required to appear before the
Additional Sessions Judge, Omerga,
Maharashtra in Special Case (NDPS) No.17 of
2018. The Sessions Court, Hyderabad granted
the custody of three accused on 13.07.2018 to
the D.R.I., Bangalore. D.R.I., Bangalore
produced the appellants before Additional
Sessions Judge, Omerga, Maharashtra on
14.07.2018 where they were remanded till 27.07.2018.
2.4 On 02.08.2018, D.R.I., Bangalore filed
application before the Special Court,
Hyderabad to transfer the records in the
Hyderabad case to Omerga Sessions Court. On
24.08.2018, the Special Sessions Judge,
Hyderabad transferred the records to the
Omerga Court. When Special Court, Omerga,
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Maharashtra came to know that the appellants-
accused have already been granted bail on
12.07.2018 before which date charge sheet was
already filed before the Omerga Court on
06.07.2018 which was taken on file on
11.07.2018 A show cause notice was issued to
D.R.I., Bangalore to give explanation. The
D.R.I., Bangalore filed an application for
cancellation of bail under Section 439(2)
Cr.P.C. in the High Court by filing Criminal
Petition No. 10524 of 2018. The High Court
by the impugned order dated 30.11.2018
cancelled the bail granted under Section
167(2) Cr.P.C. dated 12.07.2018. Aggrieved
against the order dated 30.11.2018, these
appeals have been filed by the three accused- appellants.
3. This Court on 22.02.2019 noticed that only one of
the appellants, i.e., Villayutham Nagu, has been
released in pursuance of the bail order dated
12.07.2018, interim order was passed in the special
leave petition filed by Villayutham Nagu alone and
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other two appellants being still under custody, notices were issued in all the matters.
4. We have heard Shri M. Karpaga Vinayagam, learned
senior counsel for the appellants. Shri Vikramjit
Banerjee, learned Additional Solicitor General has appeared for the respondent.
5. Learned senior counsel for the appellants submits
that before the Special Judge, Hyderabad when the
case was taken on 12.07.2018 neither any charge sheet
was filed before the Special Court Hyderabad nor any
information was given to the Special Court that any
charge sheet has been filed in Omerga Court,
Maharashtra. No complaint under Section 36A(d) of
NDPS Act having been filed by 12.07.2018 by which
period, 180 days had lapsed, the learned Special
Court had granted default bail on 12.07.2018 to all
the appellants. The accused were entitled for
default bail under Section 167(2) Cr.P.C. Learned
Senior counsel submits that instead of filing an
application for cancellation of the bail before the
Special Court under Section 439(2) Cr.P.C., the
respondent approached before the High Court under
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Section 439(2) Cr.P.C. When the bail order was
passed by the Special Court, D.R.I., Bangalore ought
to have informed the Special Court seeking the
cancellation of the bail by giving explanation as to
why the fact of filing combined complaint was not
informed to the Special Court. It is submitted that
recovery of contraband from accused by the D.R.I.
Hyderabad is entirely different from the Omerga case,
which is relating to the recovery of the contraband
manufactured at the factory situated at Omerga. The
appellants are to be charged only for the offence of
possession and the transport. The appellants have no
role to play with reference to the manufacture of
contraband in the factory at Omerga. The seizure of
the contraband was made by the D.R.I., Hyderabad on
11.01.2018 only during the time between 12 PM to 3:30
PM at Hyderabad whereas the recovery of contraband
from the factory at Omerga was made by the D.R.I.,
Bangalore only on 11.01.2018 at 4.30 PM and on
12.01.2018. It is further submitted that when the
Special Court was not informed either on 10.07.2018
or 12.07.2018 that any charge sheet has been filed on
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06.07.2018, no error was committed by Special Court
in granting the default bail under Section 167(2) Cr.P.C.
6. Learned Additional Solicitor General refuting the
submissions of the learned senior counsel for the
appellants contends that the appellant’s Car was
intercepted at Hyderabad on basis of specific and
credible information that huge quantity of NDPS
substance being illegally manufactured in premises of
M/s. Pragati Electrical Work Omerga, which is being
transported to Chennai. A total of 45.874 Kgs of
NDPS substance from the appellants was seized on the
basis of specific intelligence. In the voluntary
statements of accused Nos. 5, 6 and 7 (appellants),
recorded under Section 67 of the Act, 1985 in
connection with the seizure of 45.874 Kgs. of
substance, they have stated that started from Omerga
for Chennai. It is submitted that a combined charge
sheet has been filed taking into consideration the
entire sequence of events including the seizure of
45.874 Kgs. NDPS substance by D.R.I., Hyderabad in
which present appellants are accused Nos. 5, 6 and 7.
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It was due to non-communication of information of
combined complaint having been filed on 06.07.2018,
the order was passed by the Special Court on
12.07.2018 granting default bail whereas on the same
day, a letter was received by Special Court,
Hyderabad where the Special Court, Omerga has asked
for the custody of the accused. All the appellants
filed a bail petition on 18.07.2018 before the Omerga
Court under Section 439 Cr.P.C., which bail
application was subsequently withdrawn on 25.09.2018.
On 31.10.2018, upon fulfilling the conditions by one
of the accused, Villayutham Nagu, the learned Omerga
Court was pleased to release the said accused on
31.10.2018 and rest of the two accused are still in
Osmanabad Jail. The High Court rightly cancelled the
bail, which was earlier granted by the learned
Special Judge and the combined complaint having been
filed on 06.07.2018, which was also taken on file on
11.07.2018, the appellants were not entitled for
grant of default bail under Section 167(2) Cr.P.C.
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7. We have considered the submissions of the learned
counsel for the parties and have perused the records.
8. The appellants’ car by which they were travelling
from Omerga to Hyderabad on 11.01.2018 was
intercepted by the D.R.I. officials of Hyderabad
Zonal Unit near the Kamkole near Hyderabad and from
the possession of the appellants 45.874 Kgs of
narcotic substance was recovered. Appellants’ in the
statement recorded under Section 67 of NDPS Act have
stated that they have started from Omerga to Chennai
in the car in which the narcotic substance was being
transported. The remand of the appellants was
extended from time to time till 12.07.2018 by Special
Court, Hyderabad. On 11.01.2018, recovery of
narcotic substance was also made at Omerga in the
factory premises of M/s Pragati Electrical Work, MIDC
Omerga, Maharashtra, on which D.R.I. has registered a
case and a combined complaint dated 06.07.2018 was
submitted by Intelligence Officer, D.R.I., Bangalore
before the Special Court, Omerga. Complaint under
Section 36A(1)(d) of NDPS Act for offences under
Section 8(c) punishable under Section 21(c), 22(c),
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23(c), 28 and 29 read with Section 38 of the NDPS Act
has been filed dated 06.07.2018 by Intelligence
Officer, D.R.I. in Omerga Court. The appellants have
been made accused Nos. 5, 6 and 7 in the complaint.
The combined complaint has been brought on the record
by the respondent alongwith additional documents in
which with regard to accused Nos. 5, 6 and 7, i.e.,
appellants in these appeals, apart from other
allegations and facts, following has been stated in paragraphs 110 and 111:-
“110. The complainant submits that, accused No. 5, 6 and 7 i.e. Shri Villautham Nagu (A5), Shri Venkatesan Balasubramaniyan (A6) and Shri Vijay Kumar L (A7), who were possessing / carrying the “Ketamlne Hydrochloride” a psychotropic substance in commercial quantity in their car bearing No. KA-39-M-2117 from Omerga to Chennai and the same was seized on 11.01.2018. Hence, they had committed an offence under Section 8(c) and 9A are liable to be punished under Section 21(c), Section 22(c), Section 23(c) read with Section 28, Section 29 and Section 38 of the NDPS Act, 1985.
111. Ketamine Hydrochloride seized from accused No. 5, 6 and 7 under Mahazar dated 11.01.2018, under Mahazar dated 11/ 12.01.2018 and under 11.02.2018 have been submitted to the Hon’ble Court vide various Memos in a sealed cover are liable for confiscation under the provisions of Section 60, 61, 62 and 63 of the NDPS Act. This Hon’ble Court may be pleased to pass
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appropriate order relating to the confiscation of the above said goods in terms of Section 63 of the NDPS Act.
Sl.
No.
Quantity Remarks
01. 45.874 Kgs Seized under
Mahazar dated
11.01.2018
02. 500 Grams Seized under
Mahazar dated,
11/12.01.2018
03. 9.65 Kgs Seized under
Mahazar dated
11.06.2018
9. The High Court in the impugned judgment noted
that charge sheet having been filed on 06.07.2018,
i.e., well within the stipulated period of 180 days,
the accused could not have been granted the benefit
under Section 167 Cr.P.C. In paragraph 8, following has been observed by the High Court:-
“8. ……………….It can be culled out from the record that filing of the single charge sheet on 06.07.2018 before the Additional Sessions Court, Omerga, was not brought to the notice of the Metropolitan Sessions Court, Hyderabad for whatever reason may be. Since the factual aspect remains that the charge sheet was filed on 06.07.2018 i.e., well within the stipulated period of 180 days, the respondents-accused are not entitled for the benefit under Section
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167(2) Cr.P.C. Under these circumstances,
the respondents-accused are entitled for
bail in accordance with the provisions
laid down under the NDPS Act read with Sections 437 and 439 Cr.P.C. and accordingly they are entitled to work out the remedies under the said provisions.”
10. It is true that the bail granted under Section
167(2) Cr.P.c. could have been cancelled under
Section 439(2) Cr.P.C.. This Court in Pandit Dnyanu
Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC
745 while considering the case where bail granted
under Section 167(2) Cr.P.C. was cancelled under
Section 439(2) Cr.P.C. by learned Sessions Judge
after noticing the facts upheld the order under
Section 439 Cr.P.C. cancelling the bail. Paragraphs 7, 8 and 9 of the judgment are as follows:-
“7. In the present case, against the accused, FIR for the offences punishable under Sections 302, 307, 147, 148, 149, 324 and 323 IPC and Section 27 of the Arms Act was registered. The accused were arrested on 28-10-2000 and were produced before the Judicial Magistrate. They filed an application under Section 167(2) CrPC on 25-1-2001 for releasing them on bail on the ground that charge-sheet was not submitted within the stipulated time and the court released them on bail on the
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same date by exercising jurisdiction under Section 167(2) CrPC. The State filed an application on 31-1-2001 under Section 437(5) and Section 439(2) CrPC before the Sessions Judge, Kolhapur for cancellation of bail. Before the said application could be finally disposed of, the accused preferred an application Ext. 8 submitting that an application under Sections 437(5) and 439(2) was not maintainable before the Sessions Court and the State ought to have approached the learned Magistrate for cancellation of the bail. That application was rejected by the learned Additional Sessions Judge by order dated 3-3-2001. Thereafter, the learned Additional Sessions Judge by judgment and order dated 2-5-2001 allowed the said application and set aside the order passed by the Judicial Magistrate on the ground that the accused were released on the 89th day, that is, before expiry of 90 days.
8. In our view, it appears that the High Court has committed basic error in not referring to the provisions of Section 439(2) CrPC which specifically empower the High Court or the Court of Session to cancel such bail. Section 439(2) reads as under:
“439. Special powers of High Court
or Court of Session regarding bail.—(1)***
(2) A High Court or Court of
Session may direct that any person
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under this Chapter be arrested and
commit him to custody.”
9. The proviso to Section 167 itself clarifies that every person released on
bail under Section 167(2) shall be deemed
to be so released under Chapter XXXIII. Therefore, if a person is illegally or erroneously released on bail under Section 167(2), his bail can be cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] has also clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.”
11. It is not even submitted before us that Omerga
Court where common complaint has been filed against
the accused had no jurisdiction to inquire and try
the offence. It was due to some miscommunication
that at the time when Court passed the order on
12.07.2018, the factum of filing of combined
complaint dated 06.07.2018 was not brought into the
notice of Special Court, Hyderabad. Although, letter
of the same date 12.07.2018 was received by Special
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Court, Hyderabad from Special Court, Omerga praying
for custody of the appellants, which custody was also
granted by the Special Court, Hyderabad on the next
day, i.e., 13.07.2018. All these facts were brought
before the High Court in application filed under
Section 439(2) Cr.P.C. and the High Court has rightly
cancelled the bail order dated 12.07.2018. We do not
find any error in the order of the High Court cancelling the bail order dated 12.07.2018.
12. It is true that two offences, one at Hyderabad
being at the instance of D.R.I., Hyderabad namely
D.R.I. 48 of 2018 was registered and another case
Special NDPS No. 17 of 2018 by the D.R.I., Bangalore,
Zonal Unit. A combined complaint taking care of both
the offences was filed before the Special Court,
Omerga as noted above wherein offences committed by
the accused were also inquired and dealt with. There
is ample material in the complaint that the
transportation of narcotic substance started from
Omerga, Maharashtra and was being allegedly to be
taken to Chennai and intercepted at Hyderabad. The
complaint, which has been brought on the record gives
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the detailed facts including the journey and the
interception of appellants at Hyderabad. The
combined complaint having been filed on 06.07.2018,
i.e., well within 180 days, the High Court did not
commit any error in cancelling the default bail granted to the appellants on 12.07.2018.
13.
We, thus, are of the view that there is no ground
for interfering with the impugned judgment /order of
the High Court. We have noted above that regular
bail application under Section 439 Cr.P.C. was filed
before the Omerga Court by the appellants, which was
withdrawn on 25.09.2018, we are of the view that it
is open for the appellants to file regular bail
application before Omerga Court under Section 439
Cr.P.C. afresh, which may be considered on merits
without being influenced by any observations made by
the order passed by the High Court in the impugned
judgment or observations made by us. We further
observe that bail application to be filed by the
appellants under Section 439 Cr.P.C. be considered
and decided expeditiously. The order dated 12.07.2018
having been set aside by the High Court, which order
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having been confirmed by this Court, the appellant,
Villayutham Nagu is to surrender before the Special
Court, Omerga. All the appeals are dismissed subject
to liberty granted to the appellants as above.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( R. SUBHASH REDDY )
………………….J.
New Delhi,
November 20, 2020.
( M.R. SHAH )
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