MUHAMMED SAKKEER v. STATE OF KERALA

O R D E R The application is filed under Section 439 of the Code of Criminal Procedure, 1973, (in short, ‘Code’) by the first accused in O.R. No. 18/2024 of the Ottappalam Forest Range Office, Palakkad, which is registered against the accused for allegedly committing the offences punishable under Sections 27(1)(d)(e)(iii)(iv)(vi), 47A, B, C, D, F, G, H, 52(1), 61(A) and 63 of the Kerala Forest Act. The petitioner was arrested and remanded to judicial custody on 23.05.2024.

The gist of the prosecution case is that; on

23.05.2024, the accused, in furtherance of their common intention, had illegally stacked sandalwood and transported the same in a vehicle for the purpose of sale. The accused were arrested on the spot with the sandalwood pieces. Thus, the accused have committed the above offences. B.A. No.5718 of 2024 3

Heard; Sri. V.S. Salim, the learned counsel appearing for the petitioner and Sri. C.S.Hrithwik, the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the above offences. In any given case, the petitioner has been in judicial custody for the last 61 days, the investigation in the case is not complete, and the final report has not been laid. Therefore, the petitioner is entitled to the benefit of the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure (in short, ‘Code’). Hence, the bail application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the petitioner is a habitual offender. If the petitioner is released on bail, there is every likelihood of him committing similar B.A. No.5718 of 2024 4 offences and also tampering with the evidence. Hence, the application may be dismissed. Nonetheless, he did not dispute the fact that the petitioner has been in judicial custody for the last 61 days, the offences alleged against the petitioner are all punishable for a period of up to ten years, the investigation in the case is not complete, and the final report has not been laid.

The prosecution allegation against the petitioner is that, he and the other accused had illegally taken the sandalwood pieces and transported the same for the purpose of sale. The fact remains that the petitioner has been in judicial custody for more than 61 days, the investigation in the case is not complete, and the final report has not been laid till date. Furthermore, all the offences alleged against the petitioner are punishable for a period of up to ten years.

Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- B.A. No.5718 of 2024 5

Procedure when investigation cannot be completed in twenty-four hours.—(1) 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. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) 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; B.A. No.5718 of 2024 6 (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and 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;]

A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], reiterated the legal proposition in Sanjay Dutt v.State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added)