Second Stint Of Police Custody After Judicial Custody Of Accused Not Permissible: Karnataka High Court

The Karnataka High Court has made it clear that an accused cannot be remanded to police custody a second time in the same case after the accused has been in judicial custody for a long time.

A Single judge bench of Justice M Nagaprasanna partly allowed the petition filed by one Emmanuel Michael who is charged for offences under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) and declared as illegal the grant of police custody by the special court, six months after he was arrested and remanded to judicial custody.

The bench said, “The second stint of Police custody, in the same case, of the petitioner between 21-05-2021 and 23-05-2021 is illegal, and the statements recorded during the said period would become statements recorded during the course of illegal custody.”

As per the prosecution, petitioner was arrested after the respondent/Narcotic Control Bureau seized 610 gms. of MDMA from the foreign Post Office at Bengaluru's Chamarajpet in December 2020. His statement was recorded and he was sent to police custody for 5 days. After interrogation, petitioner was remanded to judicial custody.

During investigation, accused no. 3 came to be arrested and he alleged that he is the consumer of the drugs that were supplied by petitioner on more than 100 occasions. This led the NCB to file another application in May 2021, seeking Police custody of the petitioner for three days. This application came to be allowed and Police again got custody of the petitioner for 3 days. During this period the police recorded statements of the petitioner insofar as the link in the chain of events, to the acts of accused No.3.

The petitioner thus approached the Court questioning the said custody and statements recorded thereon and sought that the same should be eschewed, in their entirety.

The bench relied on CBI v. Anupam J. Kulkarni, (1992), where the Supreme Court held that Police custody that has been granted after completion of 15 days of Police custody was illegal, which would mean the second stint of Police custody was illegal. It has to be in the first 15 days of arrest of the accused.

Following which the bench said “The second stint of Police custody for interrogation, in the same case, long after the accused being in judicial custody is unavailable. Police custody, on a remand application, can be made and granted for the first 15 days of arrest of the accused. Once the accused is remanded to judicial custody, seeking Police custody repeatedly on the ground that total 15 days custody is not yet over is a right that is unavailable to the prosecution.”

As regards the prayer made by the petitioner to eschew the statement recorded in the illegal custody, the bench referred to State v. N M T Joy Immaculate, (2004) where the Apex Court held—Revisional Court or even the Court under Section 482 would not eschew any evidence, as it would be for the accused before the concerned Court to urge all these points and the concerned Court to take note of the fact of the statements recorded during the illegal custody.

Therefore, Court said it "would not venture into declaring that the statement recorded during the second stint of Police custody be eschewed in its entirety which is akin to statements of an illegal act. No doubt it is illegal, but exercising jurisdiction to hold it as illegal and completely eschewing it, is not the power that is available at the hands of this Court.”

It added, “The concerned Court is at liberty to consider the veracity of the statements recorded during the aforesaid period and regulate the procedure in accordance with law.”

Case Title: Emmanuel Michael And Union of India

Case No: WP 17961/2021

Citation: 2023 LiveLaw (Kar) 291

Date of Order: 28-07-2023

Appearance: Senior Advocate Hashmath Pasha a/w Advocate Kariappa N A for Petitioner.

CGC Narasimhan S for Respondent.

Click Here To Read/Download Order