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PETITIONER: MANOJ

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       01/03/1999

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

JUDGMENT:

     J  U D G M E N T Thomas J.  Leave granted.   Appellantis  caught  between Scylla and C harybdis.  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 bond since his arrest in the  MP  case became a stonewall for his release from 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 charge-sheet was laid  in the  MP case till then.  But the special court 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

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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 of 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  167(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.  Sub-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 authorise 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 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

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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 sub-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 requisite 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  officer  shall  detain  in custody  a  person  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 of arrest to the Magistrates Court.

     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 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.

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     Of  course the stand of the State of Madhya Pradesh is that  appellant continues to be under detention pursuant  to his  arrest in the Rajasthans 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  of 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  the judgment shall prejudice the powers  of  the police  to  arrest the appellant in accordance with law,  in connection with any case.