SHINU N K Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) The petitioner is the 2nd accused in Crime No. 420/2012 of Karikkottakkary Police Station for offence under Section 55(a) of the Abkari Act. The petitioner was arrested on 21-12-2012 with 85 bottles of Indian Made Foreign Liquor having capacity of 180 ml. each and 70 bottles containing 375 ml. each. Ever since he is in judicial custody. His application for bail was rejected by the Judicial Magistrate of the 1st Class, Mattannur on 19-2-2013 though the petitioner had been in custody for 60 days, as on 19-2-2013 and that the final report was not filed. The reason stated by the learned Magistrate is that the word 'shall' used in Section 167 of Cr.P.C. is only directory and not mandatory. A reading of Section 167 Cr.P.C. would be relevant.

(2.) Going by proviso to Clause (ii) above, I find that no Magistrate can authorise detention of the accused in custody exceeding the period mentioned under Clauses (i) and (ii), if the investigation could not be completed within the time-limit prescribed thereunder. The order of the learned Magistrate declining to release the petitioner is absolutely not correct.

(3.) Suffice to state that the learned Magistrate had omitted to read the above provision and the precedents on the point. As early as in Sanjay Dutt v. State through CBI, 1994 5 SCC 410, the Apex Court has held that after the expiry of the period prescribed under proviso to sub-section (2) of Section 167 of Cr.P.C., the detention of the accused in custody beyond the period prescribed therein is illegal and violative of Article 21 of the Constitution of India. That was reiterated by the Apex Court in the decision Uday Mohanlal Acharya v. State of Maharashtra, 2001 AIR(SC) 1910. At para 8 in page 1921 it is held as follows: