- (1.) N. L. Ganguly, J. These two bail applications under Section 439 of Cr. P. C. are by Bechan Misra s/o Sri Kare Deen Misra r/o village Mau Mukhtaman P. S. Khajni, district Gorakhpur and Ram Dayal Chaurasia s/o Sri Ram Sewak r/o village Palhaipur P. S. Khajni, district Gorakhpur, who are involved in Crime Nos, 16 and 17 of 1993, respectively under Section 20-B of N. D. P. S. Act.
(2.) ACCORDING to the prosecution case, at about 11. 45 a. m. on 29-1-1993 the Station Officer P. S. Gohana along with staff was checking vehicles. In the course of checking of Vehicle No. URG 1066, 2 kgs. of illegal charas was re covered from the accused Bechan Misra and 2 kgs. of the same article was reco vered from accused Ram Dayal Chaurasia. The applicants are detained in cus tody in connection with the above criminal cases. In the leading case of Bechan Misra, counter affidavit has been filed and the learned counsel for the applicant and the State stated that the counter affidavit filed in the leading case, may be considered in the connected bail application of Ram Dayal Chaurasia. The learned counsel Sri Daya Shanker Misra submitted firstly that the seizure Of the alleged Charas from the applicant was made illegally and there was no compliance of Sections 50 (1), 52 (1) (3) and 52a- (2) of N. D. P. S. Act, hereafter stated as 'the Act' Secondly it was urged that no charas was recovered from the possession of the accused-applicant neither it was seat for chemical examination by the prosecution, hence the accused are entitled for bail and lastly the learned counsel for the applicants strenuously placed submissions that the detentions of the applicants are without proper and legal remand order, hence the detention of the applicants are wholly illegal and unwarranted. They are entitled to be set at liberty forthwith. In the alternative, it was submitted that since it is a bail application and not a writ petition for issuing a writ of habeas corpus, the lesser remedy of grant of bail would serve the ends of justice, The learned counsel for the applicant in order to substantiate and fortify his submissions that the detention without a legal and valid order of remand, the accused-applicant is entitled for bail atleast, submitted the following photostat copies of the certified copies of the judgments as under : (i) Writ petition No, 10884/89 (HC) Allahabad High Court Lucknow Bench, Sam Shanker v. Adhikshak, Janpad Karagar and another. (ii) W. P, No. 10885/89 Vijay Kumar @ Aggu and another v. Supdt. District Jail, Faizabad and another. (iii) Crl. Misc. Case No. 875 (B) of 1990, Pale v. State. (iv) 1993 U. P. Criminal Ruling 1 \2--Dinesh Singh v. State of U, P. (a) Pradeep Singh and Dinesh Singh v. State. (v) W. P. No. 260 of 1991 (AC)--Shivaji Singh alias Netaji and another v. Adhikshak District Jail, Lucknow and another. (vi) 1993 U. P. Criminal Ruling 383-Abdul Hamid v. Supdt. District Jail, Lucknow. (vii) 1992 U P. Criminal Rulings 531-Rafi Ahmad v. Adhikshak, Janpad Karagar and another. (vii) 1993 U. P. Criminal Rulings 159-Vashish Muni v. Supdt. District Jail, Faizabad and another. (ix) 1977 Allahabad Criminal Cases 273, Tej Bahadur Singh v. State of U. P. and another, (x) Photostat copy of the judgment of Habeas Corpus Petition No. 4605 of 1983--Sukhdeo Singh alias Sukha Singh v. Superintendent, District Jail, Nanital and others. (xi) Copy of judgment in Writ Petition No. 33/93, Mushtaq alias Mustaffa v. Jail Supdt,, Lucknow. (xii) 1953 AIR SC 227, Ram Narain Singh v. State of Delhi and others. and several other judgments for consideration by the Court. It is stated that after the accused-applicants were arrested, they had been illegally detained in police custody and were not sent to the competent court thereby violated the provisions of Sections 56, 57 and 167 of Cr. P. C. It is said that in connected Crime Nos, 16 and 17 of 1993, a joint charge-sheet was submitted before the Court of Sessions Judge dated 12-4-1993. The next date fixed was 14-4-1993. It is said that no remand order was passed on 12-4-1993 for detaining the accused-applicant till 14-4-1993 on 14-4-1993 the Court fixed next date as 27-4-1993. It is said that no order remanding the accused to the custody in jail was passed by the Court. Similarly, on the next dates, 20-5-1993, 26-6-1993 and earlier dated 12th, 14th and 27th April, 1993 fixed by the Court, were also without any order or direction of remand to jail authorities for the custody of the applicants. The learned counsel sub mits that the detention of a applicant without a legal and valid remand order, is wholly illegal and unwarranted. Thus, the applicants are entitled to be enlarged on bail. The learned counsel submitted that after 12-4-1993 and prior to the said date in case diary, there is no order of legal remand of the applicants on record. These orders were simply routine and mechanically passed. Such orders passed mechanically in routine manner, would be no order in the eye of law, the accused applicants would be entitled to be enlarged on bail.
(3.) IN para 22 of the affidavit, it has been stated that joint charge-sheet in Case Crime Nos. 16 and 17 of 1993 was filed on 12-4-1993. The Sessions Judge after receipt of the charge-sheet fixed 14-4-1993 as the date. It has been stated in the affidavit that between 12-4-1993 there is no order on record for remand of the accused in custody. Similarly, in para 23 of the affidavit, it has been stated that on 14-4-1993 the Sessions Judge fixed 27-4-1993 without passing any order of remand for Keeping the accused person in custody. Similarly on 20-5-1993 and 26-6-1993 also, the Sessions Judge has not passed any order of remand for custody of the accused. The averments of the affidavit from paras 22 to 27 of the affidavit have been con troverted and denied in the counter affidavit filed by the State. It was submitted that the charge-sheet submitted by the State was received in the Court of Sessions on 12-4-1993 and in the order-sheet dated 14-4-1993, it is clear that an order of remand under Section 309, Cr. P. C: was passed. The earlier order of remand warranted under Section 167, was rejected, since the submission of the charge-sheet in the Court. The learned Sessions Judge is said to have actually passed orders of remand on 14-4-1993 to 27--1993 and there are initials on the relevant records. The perusal of the order-sheet shows that the next date fixed in the case was on 20-5-1993 framing of the charge and on that date it was said that the accused-applicant shall engage counsel of their choice. They were admitted to jail till then. The record clearly shows that accused was remanded from 27-4-1993 to 28-5-1993 and there are initials of the Sessions Judge, After that, the accused were remanded on 20-5-1993 to 26-6-1993, again from 26-6-1993 to 29-7-1993 and from 29-7-1993 to 8-9-1993. A photostat copy of the order sheet has been annex ed with the counter affidavit as Annexure CA 1. The learned State Counsel referred to Annexures CA 1 and CA 2 filed with the counter affidavit. Annexures CA 2 is the remand order dated 14-4-1993 which directs the Jail Authorities to Keep the accused-applicant in jail custody and produce the accused before the court on the date fixed. A perusal of this Annexure CA 2 shows that the special Sessions Judge had not applied his mind to the case observing that the accused have been charged for commission of offence under Section 20-B (ii) of N. D. P. S. Act and the case has been committed to the Court of Special Sessions Judge. This order dated 14-4-1993 on the remand sheet is not to be read in isolation. It has to be read along with the order- sheet of the case itself for arriving at a conclusion whether the court before passing the order of remand has applied its mind or in a casual routine mechanical manner granted the remand for keeping in jail custody the accused persons.;