MD. KALIM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present application under Section 439 of the Code of Criminal Procedure (in short, the Code) has been preferred in connection with Sessions Case No. NDPS 34/2020 arising out of Bhadreswar Police Station Case No.154 of 2020 dated 25-06- 2020 under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the NDPS Act).

(2.) Shorn of unnecessary details, the facts are that the petitioner was initially arrested on 23rd June, 2020 in connection with Bhadreswar P.S. Case No.122/20 dated 13.05.2020 under Sections 147/ 148/ 149/ 186/ 188/ 332/ 333/ 153A/ 427/ 436/ 325/ 326/ 307 of the Indian Penal Code (in short, the former case). As per the statement of the petitioner, while in custody, the Sub-Inspector of Police, Bhadreswar Police Station conducted a search at RPN Street, Victoria Jute Mill Line, Telinipara and seized contraband substance above commercial quantity. Upon intimation of such fact, the Officer-in-Charge of Bhadreswar Police Station suo moto initiated a case being Bhadreswar P.S. Case No.154/2020 (in short, the latter case) dated 25th June, 2020 alleging commission of offence punishable under Section 21(c) of the NDPS Act. On 26th June, 2020 itself the Investigating Officer (in short, IO) filed an application before the court of learned Additional District and Sessions Judge, Special Court, Chinsurah, Hooghly inter alia praying that the petitioner 'may kindly be shown arrested in this case in the interest of investigation'. On 26th June, 2020 a further application was filed inter alia praying for an order of inventory by the learned Magistrate. By an order dated 26th June, 2020, the learned court directed for production of accused on 6th July, 2020, with an observation that the prayer regarding certification of correctness of inventory would be considered after production of the accused. On the returnable date, the accused/ petitioner was produced and by an order dated 6th July, 2020 the petitioner was shown arrested and remanded to judicial custody till 20th July, 2020. By the said order the prayer for inventory before the learned Magistrate was also allowed. The order dated 6th July, 2020 had not been challenged by the petitioner. Thereafter, the learned Magistrate was pleased to fix inventory on 21st September, 2020. Pursuant thereto, the IO along with a professional photographer appeared before the learned Magistrate together with the seized materials. The entire episode, including the photographs taken and the drawal of representative samples, was duly certified by the learned Magistrate on 21st September, 2020 itself. Thereafter upon receipt of the test report from the State Drugs Control and Research Laboratory on 23rd November, 2020, the charge sheet was submitted on 13th December, 2020. The petitioner thereafter filed an application for bail being CRM 8850 of 2020 which was dismissed by an order dated 18th November, 2020. The present application has been preferred by the petitioner on 12th January, 2021 renewing his prayer for bail. The petitioner is in custody since the month of June, 2020.

(3.) Mr. Basu, learned senior advocate appearing for the petitioner argues that the learned Magistrate lacked jurisdiction to remand the accused/petitioner since he was in illegal detention of the police in violation of Article 22(2) of the Constitution of India. As the petitioner was not produced before the learned Magistrate within 24 hours of arrest in the latter case, the detention thereafter, beyond 24 hours from the time of arrest, was illegal. The Courts have in no uncertain terms held that without the authorisation of a Magistrate, no arrestee shall be detained in the custody of the police beyond 24 hours. In support of such argument reliance has been placed upon a judgment delivered in the case of Manoj -vs- State of Madhya Pradesh, reported in 1999 (3) SCC 715 and a judgment delivered by this Court in Md. Hanif Mondal and Anr. -vs- State, reported in (2018)4 C Cr LR (Cal) 188.