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PETITIONER: MANOJ

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       05/04/1999

BENCH: K.T.Thomas, M.B. Shah.

JUDGMENT:

Thomas J.

       Leave granted.

       Appellant is  caught between Scylla Charybdis.  Such a peculiar situation arises but rarely for an accused and he remains in jail for long, without conviction  in  any  case, despite  obtaining  an  order  of  bail as the High Court of Madhya Pradesh expressed  helplessness  in  considering  his plea for release, though he has a legal point in his favour.

       The aforesaid situation was reached on the following facts.   On  22.6.1998  appellant was arrested in connection with a case involving Section 15 of the Narcotic  Drugs  and Psychotropic  Substances Act, 1985 (For short the ’NDPS Act) registered by the police of Kota in  Rajasthan  (it  can  be referred to as "the Rajasthan case", for convenience) and is remaining in  custody.  In the meanwhile, another case under NDPS Act started snowballing at rampura district  in  Madhya Pradesh  which  initially  was  against one Govind Singh and eventually it involved the appellant also  (for  convenience the latter case can be referred to as "the MP case").  It is said  that  appellant was recorded as arrested in connection with the MP case on 7.8.1998.

       Appellant moved for bail in Rajasthan case and after initial  setbacks  he  succeeded  in getting an order in his favour which was passed on 16.10.1998 by the High  Court  of Rajasthan  (Jaipur  Bench)  directing  him to be released on bail on executing a personal bond for Rupees fifty  thousand together with two solvent sureties in a sum of Rupees twenty five  thousand each to the satisfaction of the Special Judge (dealing with NDPS cases) Kota.  We are told that  appellant did  not  execute  the  bind since his arrest in the MP case became a stonewall for his release form custody.

       So he moved the High Court  of  Madhya  Pradesh  for bail  under  Section  439  of the Code of Criminal Procedure (’the Code’ for short)  after  his  first  move  before  the Sessions  Court  at Mandsaur in Madhya Pradesh was rejected. The High Court of Madhya Pradesh also rejected his petition. After the expiry of ninety days  of  arrest  in  the  Madhya Pradesh  case  he  moved  an  application before the Special Judge, Kota contending that he is entitled to bail under the proviso to Section 167(2) of the Code as no charge0sheet was laid in the MP case  till  then.    But  the  special  court

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rejected  the  application  on the ground that ’he was never produced before the court after the formal  arrest  (and  no order as  regards first remand was ever passed):  therefore, in this case, question of completion of investigation within a period of ninety days does not arise."

       He again moved the High Court of Madhya Pradesh upon which the impugned order was passed.  Learned  single  judge of  the High Court of Madhya Pradesh who passed the impugned order, was not inclined to give the appellant benefit of the proviso to Section 167(2) of the Code on the premise that he was not produced before any Court  pursuant  to  the  arrest dated  7.8.1998  and  hence  he  cannot  be treated to be in judicial custody in the MP case.  This is what  the  learned judge has said:

       "On  perusal off the impugned order of the         trial   court,   it   emerged   that   the         accused/applicant  is  not produced before         the Court as  yet  in  compliance  to  the         production  warrant  issued  by the Court.         The trial Court considered that he is  not         in a judicial custody in the instant case.         Without   commenting   anything   on   the         applicability of Section  187(2)  to  this         case  at  this  stage I do not consider it         proper to enlarge the accused on bail."

       It is now well-neigh settled  that  benefit  of  the proviso  to  Section  167(2)  of  the Code would endue to an accused involved in the offences under  NDPS  Act  as  well, (Vide Union  of India vs.  Thamisharasi and ors., 1995 4 SCC 190).  Paragraph 14 of the said decision reads thus:

       "In our opinion, in order to  exclude  the         application  of the proviso to sub-section         (2) of Section 167 CrPC in such  cases  an         express  provision indicating the contrary         intention was required or  at  least  some         provision  from  which  such  a conclusion         emerged by  necessary  implication.     As         shown by us, there is no such provision in         the  NDPS  Act  and  the scheme of the Act         indicates that the total period of custody         of   the   accused   permissible    during         investigation  is  to  be found in Section         167 CrPC which is expressly applied.   The         absence   of  any  provision  inconsistent         therewith in this Act is significant."

       But here the position is slightly different  because appellant is not continuing in custody pursuant to any order passed under  Section  167)2)  of the Code.  Aub-Section (2) would apply only to  an  accused  who  was  forwarded  to  a magistrate  as per sub-section (1) because further detention of the accused can be made only if it is  so  authorised  by such magistrate.    Proviso  to sub-section (2) contains the interdict that "no magistrate shall authourise the detention of the accused person in custody under this paragraph for  a total  period exceeding ninety days, where the investigation relates to an offence punishable  with  death,  imprisonment for  life  or  imprisonment  for a term of not less than ten

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years".  The proviso further mandates that "on the expiry of the said period of ninety days......    the  accused  person shall  be  released  on  bail  if he is prepared to and does furnish bail." It is further  provided  that  "every  person released  on  bail under this sub-section shall be deemed to be so released under the provisions of  Chapter  XXXIII  for the purposes of that Chapter."

       Here  the  prayer  for bail is opposed on the ground that detention is  without  such  authorisation.    Can  the benefit of  bail be denied on such a ground?  Section 167(1) of the Code is relevant in this context as it enjoins on the police officer concerned a legal obligation to  forward  the arrested accused   to   the   nearest   magistrate.     That sub-section reads thus.

       "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         subb-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."

       The police officer who conducts investigation cannot obviate the legal obligation to perform two requisites if he knows that investigation cannot be completed within 24 hours after arrest  of the accused.  One requested is, to transmit a copy of the case diary to the nearest judicial magistrate. The other is, to forward  the  accused  to  such  magistrate simultaneously.   The  only  exceptional ground on which the police officer  can  avoid  producing  the  arrested  person before  such  magistrate  is  when  the officer concerned is satisfied that there are no grounds for believing  that  the information or accusation was well-founded.  In such a case, the  accused  must  be released from custody to which he was interred pursuant to the arrest.

       In  this  context  Section  57  of  the Code is also relevant and hence it is extracted below :

       "57.   Person  arrested not to be detained         more than twenty-four hours.  - No  police         arrested  without  warrant  for  a  longer         period than under all the circumstances of         the case is reasonable,  and  such  period         shall  not,  in  the  absence of a special         order of a Magistrate under  section  167,         exceed  twenty-four hours exclusive of the         time necessary for the  journey  from  the         place   off  arrest  to  the  Magistrate’s         Court."

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       If the police officer is forbidden from  keeping  an arrested  person beyond twenty four hours without order of a magistrate, what should happen to the arrested person  after the said  period.    It  is a constitutional mandate that no person shall be deprived of his liberty except in accordance with the procedure established in law.  Close to  its  heels the  Constitution  directs  that  the  person  arrested  and detained in custody shall be  produced  before  the  nearest magistrate within  24  hours  of such arrest.  The only time permitted by  Article  22  of  of  the  Constitution  to  be excluded  from  the  said  period  of  24 hours is "the time necessary for going from the place of arrest to the court of the magistrate".  Only under two contingencies can the  said direction be  obviated.   One is when the person arrested is an "enemy alien".  Second is when the arrest  is  under  any law for  preventive  detention.    In  all  other  cases the Constitution  has  prohibited  peremptorily  that  "no  such person  shall  be detained in custody beyond the said period without the authority of a magistrate".

       When the State of Madhya Pradesh, whose police  made the  arrest  of the appellant in connection with the MP case on 7-8-1998, admitted that after arrest he was not  produced before   the   nearest   magistrate  within  24  hours,  its inevitable corollary is that detention made as a  sequel  to the  arrest  would become unlawful beyond the said period of 24 hours.

       Of course the stand of the State of  Madhya  Pradesh is  that  appellant continues to be under detention pursuant to his  arrest  in  the  Rajasthan’s  case.    Excuses  were advanced  by  the  respondent-State  for  their inability to produce the accused before the nearest magistrate within the required period.  But no such excuse has been recognized  by law.   Hence  respondent  cannot  validly  press for further detention of the accused beyond 24 hours.  That  arrest  has now become otiose.

       We  therefore  make  it  clear  that  as soon as the appellant executes the  bond  to  the  satisfaction  of  the Special  Magistrate,  Kota, in pursuance of the order of the High Court off Rajasthan dated 16-10-1998 (cited  supra)  he shall be released forthwith unless his detention is lawfully required in  any  other case.  We make it clear that nothing stated in this judgment shall prejudice the  powers  of  the police  to  arrest  the appellant in accordance with law, in connection with any case.