N. L. Ganguly, J.@mdashThese 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 20B of N. D. P. S. Act.
2. According to the prosecution case, at about 11.45 a.m. on 2911993 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 recovered from the accused Bechan Misra and 2 kgs. of the same article was recovered from accused Ram Dayal Chaurasia. The applicants are detained in custody 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 accusedapplicant 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,
3. 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 accusedapplicant 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 \\2Dinesh 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 383Abdul Hamid v. Supdt. District Jail, Lucknow.
(vii) 1992 U P. Criminal Rulings 531Rafi Ahmad v. Adhikshak, Janpad Karagar and another.
(vii) 1993 U. P. Criminal Rulings 159Vashish 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 1983Sukhdeo 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.
4. It is stated that after the accusedapplicants 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 chargesheet was submitted before the Court of Sessions Judge dated 1241993. The next date fixed was 1441993. It is said that no remand order was passed on 1241993 for detaining the accusedapplicant till 1441993 on 1441993 the Court fixed next date as 2741993. It is said that no order remanding the accused to the custody in jail was passed by the Court. Similarly, on the next dates, 2051993, 2661993 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 submits 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 1241993 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.
5. In para 22 of the affidavit, it has been stated that joint chargesheet in Case Crime Nos. 16 and 17 of 1993 was filed on 1241993. The Sessions Judge after receipt of the chargesheet fixed 1441993 as the date. It has been stated in the affidavit that between 1241993 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 1441993 the Sessions Judge fixed 2741993 without passing any order of remand for Keeping the accused person in custody. Similarly on 2051993 and 2661993 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 controverted and denied in the counter affidavit filed by the State. It was submitted that the chargesheet submitted by the State was received in the Court of Sessions on 1241993 and in the ordersheet dated 1441993, 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 chargesheet in the Court. The learned Sessions Judge is said to have actually passed orders of remand on 1441993 to 27^1993 and there are initials on the relevant records. The perusal of the ordersheet shows that the next date fixed in the case was on 2051993 framing of the charge and on that date it was said that the accusedapplicant shall engage counsel of their choice. They were admitted to jail till then. The record clearly shows that accused was remanded from 2741993 to 2851993 and there are initials of the Sessions Judge, After that, the accused were remanded on 2051993 to 2661993, again from 2661993 to 2971993 and from 2971993 to 891993. A photostat copy of the order sheet has been annexed with the counter affidavit as Annexure CA 1.
6. 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 1441993 which directs the Jail Authorities to Keep the accusedapplicant 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 20B(ii) of N.D.P.S. Act and the case has been committed to the Court of Special Sessions Judge. This order dated 1441993 on the remand sheet is not to be read in isolation. It has to be read along with the ordersheet 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.
7. The learned counsel for the applicant produced a typed copy of the order of reference passed by the Division Bench in writ petition No. 236 of 1992 (HC) Deepak Shorn v. District Superintendent of Jail, Lucknow connected with three other writ petitions referring the following questions mentioned to a Larger Bench of five Judges :
(1) Whether under Section 309(2), Cr. P. C., the power of the courts to adjourn or postpone the enquiry or trial of a case as well as to remand the accused to jail custody by a warrant is controlled by the expressions and conditions referred to therein i.e. "for the reasons to be recorded" and "on terms as we think fit"?
(2) Whether the Jaw laid down by the Full Bench in the case of Urooj Abbas v. State of U. P., 1973 Criminal Law Journal 1458 to the effect that there is no need to record an order of remand in writing separately in the order sheet nor there is any need to the reasons therefore in writing for remanding the accused to jail has been correctly laid down ?
(3) Whether the interpretation placed on Section 309 of the Code of Criminal ProcedureUrooj Abbas vide 1973 Cr. L.J.I 458 is in consonance with the principles of law enshrined under Articles 14 and 21 of the Constitution ?
A perusal of the referring order passed by the Division Bench of Hon. S, Sagir Ahmad and Hon. H, N. Tilhari, JJ, shows that the observations of their Lordship of the Supreme Court in case of Madhu Limaya in AIR 1969 SC 1014 in support of his contentions and proposition that the order of remand directing the detention in jail custody is to be passed in writing after applying the mind of the Magistrate show the court concerned and for his further contention that the Supreme Court has condemned the remand order passed in routine and mechanical manner. The learned counsel for the applicants Sri D. S. Misra pointed out from referring order of the Lucknow Bench that "a reasoned order of remand on the file is a must and therefore the accused has to be sent back to jail authorities by a warrant of remand in a proper form issued to the authorities". The contrary view in writ petition No. 171 of 1992 (HC) the Division Bench held that there is no need to record an order of remand nor there is any need to record any reason for remand by adjourning the case.
8. The Full Bench decision of our Court 1973 Crl Law Journal 1458 Uroj Abbas v. State of U. P. laid the Jaw that there is no need for the Magistrate to record any order of remand on the file of the case nor is there any need or requirement compelling the Court to record reasons for remanding the accused to jail. Once the case is being adjourned in certain contingencies, the Magistrate or the Court concerned has got discretion to remand the accused to jail and so by a warrant of remand, the accused if remanded to jail, that is sufficient compliance irrespective of the fact that the remand warrant is stereo type.
9. The learned counsel for the applicants submitted that the order of remand, a copy of which is on record as CA 2 dated 1441993, may be an order of remand according to the pro forma prescribed with reasons but order thereof are on the back of the same sheet simply mentioning dates 27493 to 2051993, 2051993 to 2661993, 2661993 to 2971993 and 2971993 to 891993.
10. The learned A. G. A. submitted that at least on the date when chargesheet was submitted, on that date there was a valid order of remand passed by the Court and case was transmitted to the special Judge. He submitted that that was full compliance of the provisions of Section 309(2), Cr. P. C. He submitted that although there was no illegality or error in keeping the accused in custody before filing of the chargesheet, as there had been orders for remand by the competent court, still if there was any error, the illegal detention, if any, stood cured on the date the case was committed to the Court of Special Sessions Judge according to the provisions of Section 308(2). He rely for these proposition the decision reported in 1984 Allahabad Law Journal 375 (FB)Surjeet Singh v. Mate of U.P. This ruling cited by the learned Addl. Government Advocate is of no much consequences or relevance. The Court has to consider that on the date of filing of the chargesheet and the date when the case was transmitted to the Court of Special Sessions Judge for trial, whether there was an order of remand according to law on record. There is no dispute at the moment that there has been divergent views on this point that the remand order passed by the Court whether requires reasons and application of mind by the Court before passing of the order of remand. The question referred by the Division Beach of the Lucknow Bench for consideration to this question to a larger Ben h are already quoted above. I have considered the arguments of the learned counsel for the parties and perused the record and the case laws cited Since similarly placed accused persons, who were detained in jail on the basis of she remand orders not strictly in accordance with law, as contemplated in the decision of the Supreme Court in AIR 1969 SC 1014, have already been enlarged on bail in Habeas Corpus Writ Petition and in some bail applications by this court on parity, I consider it that the applicants cannot be treated differently and they are also entitled to be enlarged on bail.
11. The other questions, referred in the earlier part of the judgment, need no further elaborate consideration at this stage as the court is directing the release of the applicants on bail till final decision in the reference made in W. P. No. 236 of 1992 (HC)Deepak Shorn v. Superintendent of District Jail, Lucknow and others connected petitions or till the judgment of Session" trial arising from Crime Nos. 16 and 17 of 1993, whichever is earlier,
12. Let the applicant Bechan Misra involved in Crime No, 16 of 1993 under Section 20B (1) of N. D. P. S. Act P. S. Mohana Distt. Siddharthnagar be enlarged on bail on his furnishing a personal bond of Rs. 50,000 (Rs. fifty thousand) with two sureties each in the like amount to the satisfaction of Special Judge, Siddharthnagar.
13. Let the applicant Ram Dayal Chaurasia involved in Crime No. 17 of 1993 under Section 20B (1) of N, D P. S. Act P. S. Mohana Distt. Siddharthnagar be enlarged on bail on his furnishing a personal bond of Rs. 50,000 (fifty thousand) with two sureties each in the like amount to the satisfaction of the Special Judge, N. D. P. S. Act ''Sessions Judge, Siddharthnagar.
Bail application allowed.
