Orissa High Court Criticizes Special NDPS Court For Denying Bail Despite Production Of Accused After More Than 24 Hrs

The Orissa High Court has criticised police for showing lackadaisical attitude in not producing before the Court some persons arrested under the stringent provisions of the NDPS Act, within the statutory period of 24 hours. It also rebuked the Special NDPS Judge for not granting bail to them despite such delay.

While terming the detention to be ‘illegal’ and in violation of constitutional provision, the Single Judge Bench of Justice Sashikanta Mishra observed,

“Finally, by referring to the ground of illegal detention as ‘flimsy’, learned Special Judge has only displayed a lack of sensitivity to the Constitutional obligation imposed upon him as a Court of law. This Court has therefore, no hesitation in holding that the impugned order cannot be sustained in the eye of law.”

Case Background

The Inspector-In-Charge of Sahadevkhunta Police Station received information that a drug deal is due to take place on October 27, 2022 at a lonely place in Fuladi by-pass area of Balasore Town. Accordingly, a raid was conducted and the present petitioners were held while carrying huge quantity of brown sugar.

Upon the search, four packets containing 1101 gram of brown sugar were recovered. After completion of the necessary formalities, the petitioners were arrested and taken to the police station. On the next day, the accused persons were sent for medical examination and thereafter, forwarded to the residential office of the Special Judge, Balasore.

A petition was filed on November 04, 2022 alleging that the petitioners were not produced before the Special Judge within 24 hours of their arrest. It was also alleged that they were actually arrested between 5:40 PM to 6:20 PM. However, they were forwarded to the Court of the Special Judge in his residential office after 11 PM on the next day.

As such, they argued, the statutory requirement of producing the arrested accused before the Court within 24 hours was clearly violated. On such grounds it was prayed that the accused persons should be released on bail having regard to the provisions of Sections 57 and 167 of CrPC read with Article 22(2) of the Constitution of India.

The Special Judge after hearing the petition held that there is no cogent material on record to show that the accused persons were detained in police custody for more than 24 hours from the time of their arrest. He also took note of the gravity of the alleged offence and the bar under Section 37 of the NDPS Act and rejected the petition. The said order was challenged before the High Court.

It was submitted for the petitioners that regardless of the time mentioned in the arrest memo, which was prepared subsequently around 11 PM on date of arrest, the petitioners must be deemed to have been arrested, the moment they were apprehended and searched since they lost their right to go wherever they pleased from that moment onwards.

Court’s Observations

Having considered the above contentions, the Court went on to examine the effect of Section 57, NDPS Act read with Article 22(2) of the Constitution of India and Section 57 of CrPC. It cited Section 36-C of the NDPS Act which says that the provisions of CrPC shall apply to the proceedings before Special Judge.

The Court also underlined that the mandate given under Section 57, CrPC that a person arrested not to be detained more than twenty-four hours without order of a Magistrate, finds ‘express sanction’ of the Constitution under Article 22(2).

“Thus, compliance of Section 57 of Cr.P.C. is in fact a compliance of the Constitutional provision referred above and therefore, mandatory. In other words, if the provisions as above are found to have been violated, the same would amount to illegal detention entitling the detainee to be set at liberty,” the Court observed.

It held that the moment when the petitioners were apprehended, they lost their liberty inasmuch as they could not leave the place any more having come under the control of the Police. It referred to the observations made by the Supreme Court in Directorate of Enforcement v. Deepak Mahajan, to hold that the moment the liberty of a person is curbed or curtailed, he is said to be under arrest.

“Thus imposition of restraint, in the present case by physical act of apprehension of the Petitioners, completes the process of arrest. Therefore, mere mentioning of a different time in the memo of arrest prepared subsequently, in the present case nearly 6 hours after the apprehension of the petitioners, cannot have any relevance whatsoever more so as it only serves to formalize the arrest already effected long back,” it added.

Therefore, it held that the petitioners must be deemed to have been arrested around 5 PM on October 27, 2022 and thus, they ought to have been produced before the Special Judge within 24 hours thereafter excluding the time taken for journey to the Court.

It said that the concerned police officer was under constitutional obligation to forward the petitioners to the Court of Special Judge within 24 hours, but he did not do the same for which the constitutional provision (Article 21) was seriously violated and the entire period of detention therefore became illegal.

The Court disapproved the view taken by the Special Judge that there was no sufficient material to hold that the accused persons were illegally detained beyond 24 hours in police custody. Reprimanding the Judge, Justice Mishra said,

“As has already been discussed hereinbefore, there are enough materials on record to show that the accused persons were detained in police custody for more than 24 hours. Secondly, the finding of the learned Special Judge that some time may have been considered for doing paper works etc. is nothing but granting undue leverage to the investigating officer and the staff of the Court involved in the process who are guilty of committing gross illegality. It was as if learned Special Judge was trying to offer explanation on behalf of the investigating/forwarding officer for the apparent delay.”

Since the detention of the petitioners was found to be illegal, the Court ordered their release forthwith. Before parting with the order, the Court made some serious remarks against the police officers concerned for their apathetic attitude in forwarding the accused persons in timely manner.

“…this Court would like to express its concern at the lackadaisical approach of the Investigating Officer in dealing with such a grave offence i.e. of illegal possession of Brown Sugar to the tune of 1 Kg. 101 grams and whose default in acting with promptitude and diligence enured to the benefit of the accused persons. This is a fit case for the higher police authorities to take serious note of and to take all necessary steps to prevent such gross lapses from recurring,” it noted.

Case Title: Sk. Hussain & Ors. v. State of Orissa

Case No.: CRLMC No. 3703 of 2022

Date of Judgment: May 19, 2023

Counsel for the Petitioners: Mr. D.P. Dhal, Sr. Advocate

Counsel for the Respondent: Mr. S.K. Mishra, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 65

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