MANOJversusSTATE OF MADHYA PRADESH

A                                  MAN OJ
                                     v.
                         STATE OF MAD HY A PRADESH

                                   APRIL 5, 1999

B                     [K.T. THOMAS AND M.B. SHAH, JJ.]


           Criminal Procedure Code, 1973-Ss. 167 (1) & (2) and 57-Arrest
    Accused not produced before the Magistrate within 24hrs.-Ejfect of-Held,
    detention beyond the period of 24hrs. unlawful-Accused entitled to be
C   released on bail-Narcotic Drugs and Psychotropic Substances Act,1985-
    S. I 5 Constitutiqn of India-Art. 22.
          Narcotic Drugs and Psychotropic Substances Act, I 985-Applicability
    of the proviso to S.167 (2) of Criminal Procedure Code, 1973.
D         Appellant was arrested for an offence under S.15 of the Narcotic
    Drugs and Psychhtropic Substances Act, 1985 by Rajasthan Police. He was
    also involved in an offence under the Act in a Mdahya Pradesh case. Thus,
    while he was in custody in Rajasthan case, he was recorded as arrested in
    Madhya Pradesh case. His application for bail in Rajasthan case was allowed,
    but he was not released because of his involvement in M.P. case. His application
E   for bail in M.P. case was rejected by both the Sessions Court and High Court.
    Since no chargesheet was filed in the said case even after expiry of ninety
    days, he moved an application for bail under S.167 (2) of the Code of Criminal
    Procedure, 1973. The Special Court rejected the bail application on the
    ground that as he was never produced before the court after his arrest, the
    completion of investigation within ninety days does not arise. On appeal,
F
    High Court also rejected his bail application. Hence the present appeal.
          Allowing the appeal, this Court

          HELD : 1. Constitution mandates that a person arrested and detained
    in custody shall be produced before the Magistrate within 24 hours of such
G   arrest. However, in the instant case, appellant was not produced before the
    Magistrate after his arrest and thus his detention is unlawful. Consequently,
    appellant is entitled to be released on bail on execution of the bond.
                                                                     [407-A-C; E]
          2. Section 167 (1) Cr. P.C. provides that the police officer who conducts
H investigation cannot obviate the legal obligation to perform two requisites if
                                          402
          MANOJ v. STATE OF MADHYA PRADESH {THOMAS, J.]                    403
he knows that investigation cannot be completed within 24 hours after arrest      A
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   B
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. [406-C-E)

     3. The plea that appellant was under detention pursuant to his arrest
in Rajasthan case and thus there was inability to produce him before the          C
nearest magistrate within the required period cannot be accepted, as law
recognises no such excuse. [407-D]

     4. The benefit of the proviso to S. 167(2 of the Code would endue to an
accused involved in the offences under Narcotic Drugs and Psychotropic
Substances Act, 1985. [405-B]                                                     D
        Union of India v. Thamisharasi and Ors., (1995) 4 SCC 190, relied on.

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 371 of
1999.
                                                                                  E
     From the Judgment and Order dated 18.12.98 of the Madhya Pradesh
High Court in M Crl.C.No.4513of1998.

        U.R. Lalit and Shakil Ahmed Syed for the Appellant.

     R. Anoop G. Chaudhary, Uma Nath Singh, Ms. Madhur Dadlani and                F
Naveen Kumar Singh for the Respondent.

        The Judgment of the Court was delivered by

        THOMAS, J. Leave granted.
                                                                                  G
      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.                                        H
    404                     SUPREME COURT REPORTS                    [1999) 2 S.C.R.

A        The aforesaid situation was reached on the following facts. On 22.6.1998
   appellant was arrested in connection with a case involving Section I 5 of the
   Narcotic Drugs and Psychotropic Substances Act, I 985 (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
B 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.

C          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
D   that appellant did not execute the bond 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.
E   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 I 67(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
p   '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
G   Madhya Pradesh who passed the impugned order, was not inclined to give
    the appellant benefit of the proviso to Section I 67(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:

H            "On perusal off the impugned order of the trial court, it emerged that .
        MAN OJ v. ST ATE OF MAD HY A PRADESH ITHOMAS , J .]                 405
        the accused/applicant is not produced before the Court as yet in            A
        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."
                                                                                    B
      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 ofIndia v. 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 C
        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 D
        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          E
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 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         F
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             G
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        H
    406                     SUPREME COURT REPORTS                    [1999] 2 S.C.R.

A 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
B          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
C          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
D   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.
E
          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
F           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."
G
          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
H   arrested and detained in' custody shall be produced before the nearest
                MANOJ v. STATE OF MADHYA PRADESH {THOMAS, J.]                   407
     magistrate within 24 hours of such arrest. The only time permitted by Article     A
     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   B
     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
                                                                                       C

     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        D
     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       E
     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           F
     connection with any case.

     S.V.K.I.                                                     Appeal allowed.