Arif Umarji Patel

ARIF U PATEL Vs. ASSISTANT DIRECTOR NARCOTIC CONTROL BUREAU

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Published: 29 April 2017

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JUDGEMENT

– (1.) ARIF U.Patel is the petitioner. He filed this habeas corpus petition to call for the records of the proceeding connected with F.No.48/1/3/95 NCB/MDS on the file of the respondent, to quash the proceedings connected with his remand and to set him at liberty forthwith.The short facts leading to the arrest and remand of the petitioner and his filing of the present habeas corpus Petition are as follows:The petitioner was arrested by the Officers of the Narcotic Control Bureau, South Zone, Madras on 27.6.1994 and remanded to custody from 28.6.1994 in connection with proceedings in F.No.48/1/3/94/NCB/MDS (now C.C.No.36 of 1995) for the alleged illicit export of Narcotic Drug and Psychotropic Substance, viz. Hashish and Mandrax Tablets to foreign countries between April, 1992 and March, 1994 in contravention of the provisions of Secs. 8, 23, 29 of the Narcotic Drugs and Psychotropic Substances Act, punishable under Secs.21 and 25 read with Sec.29 of the said Act. The illicit export was made in the name of K.J. Exports, Madras. Petitioner filed Crl.M.P. No:980 of 1994 for grant of bail and he was granted bail by the Special Court on 25.7.1994. Respondent filed Crl.O.P.No.6552 of 1994 before this Court for cancellation of the bail granted to the petitioner. This Court, on 19.1.1995 dismissed Crl.O.P.No.6552 of 1994. Respondent filed Criminal Appeal Nos.289 and 290 of 1995 before the Supreme Court and the said appeals were also dismissed by the Supreme Court on 1.5.1995. On the date when the order was pronounced in the criminal appeals, the respondent sought for imposition of additional conditions on the petitioner, who had been granted bail. The Supreme Court directed the respondent to move the Special Court, which granted bail, for imposition of additional conditions. While so, on 2.5.1995, the respondent moved the Special Court for issue of an arrest warrant against the petitioner in connection with the proceedings in F.No.48/1/3/95/NCB/MDS for the alleged illicit export of Mandrax Tablets to the Kingdom of Swaziland, South Africa, obtained the warrant of arrest and arrested the petitioner on 2.9.1995. The petitioner was remanded to judicial custody by the Additional Chief Metropolitan Magistrate, (E.O.II), Egmore, Madras and now confined in Central Prison, Madras. Alleging that his detention in connection with the proceedings in F.No.48/1/3/93/NCB/MDS is illegal the petitioner filed this habeas corpus petition to call for the records relating to the proceedings in F.No.48/1/3/95/NCB/MDS, quash the same and set him at liberty forthwith.
(2.) MR.Ram Jethmalani, learned Senior Counsel appearing on behalf of MR.B.Kumar, learned counsel appearing for the petitioner submitted as under: In C.C.No.36 of 1995 the petitioner was enlarged on bail by the Special Court on 25.7.1994. The appeal filed by the respondent before this Court for cancellation of the bail was also dismissed on 19.1.1995. The further appeal, by way of Special Leave Petition, to the Supreme Court was also dismissed on 1.5.1995. The respondent is fully aware of the order passed by the Supreme Court in Crl. Appeal Nos.289 and 290 of 1995. while so, on 2.5.1995, i.e. one day after the passing of the order by the Supreme Court, the respondent moved the Special Judge for Economic Offences, Madras and obtained a warrant for arrest against the petitioner in connection with offence relating to proceeding No.F.48/1/3/95/NCB/MDS, i.e. alleged illicit export of Mandrax Tablets to Swaziland, treating the same as a new and distinct case from the one under which the petitioner was already in remand, viz. illicit export of Hashish to Israel. The respondent did not apprise the Special Judge of the order passed by the Supreme Court on 1.5.1995 in Crl.Appeal. Nos.289 and 290 of 1995 and suppressed this very vital and important fact. The Special Judge was persuaded to issue the arrest warrant, treating the offence of illicit export of Mandrax Tablets to Swaziland as a new and distinct from the offence of illicit export of Hashish to Israel, for which the petitioner was already in remand. The Special Judge was therefore persuaded to treat the petitioner as a remand prisoner and that his continuance as remand prisoner as on 2.5.1995 was valid and justified to issue a warrant of arrest for the offence of illicit export of Mandrax Tablets\’to Swaziland. On the basis of the warrant of arrest issued by the Special Judge on 2-5-1995, the respondent obtained remand order from the Additional Chief Metropolitan Magistrate, (E.O.II), Egmore, Madras for remanding the petitioner to Judicial custody in the allegedly new case relating to export of Mandrax Tablets to Swaziland in January, 1994. On the basis of the warrant of arrest obtained from the Special Court, the respondent persuaded the Remanding Magistrate to issue an order of remand. The sequence of events would show that by serious suppression of vital and material facts, the petitioner\’s liberty has been taken away. The warrant of arrest issued on 2.5.1995 by the Special Court and the subsequent remand order issued by the remanding Magistrate are illegal, since there is non-application of mind. By order dated 1. 5. 1995, the Supreme Court of India has vacated all orders of stay and dismissed the appeals filed by the respondent and therefore as on 1.5.1995 the petitioner was no longer under judicial custody. Hence, the warrant of arrest issued by the Special Court on 2.5.1995 and subsequent remand order are illegal. The Special Judge was misled by the respondent to think that the petitioner was still injudicial custody and therefore under his jurisdiction as a remand prisoner in pursuance of the order of remand passed by the said court from time to time. It is because of the same, the Special Court had issued a warrant for arrest. But for the fact that the petitioner was being remanded in judicial custody, the Special Court would not have the power to issue a warrant of arrest, which only a Magistrate could do under Sec.44 of Crl.P.C. But for the suppression of the order of the Supreme Court, the Special Court would not have issued the arrest warrant. The petitioner has been gravely prejudiced by the suppression of this vital information. The subsequent arrest on 2. 5. 1995 is only designed to set at naught the orders of bail granted by this Court and as a confirmed by the Supreme Court by its order dated 1.5.1995. The remand report in C.C.No.36 of 1995 specifically mentions about the alleged illicit export of Mandrax Tablets to Swaziland in January, 1994. Therefore, the arrest and remand in C.C.No,36 of 1995 was made not only for the offence relating to illicit export of Hashish to Israel but also for the alleged illicit export of Mandrax Tablets to Swaziland in January, 1994. In the counter filed by the respondent in Crl.M.P.No.980 of 1994, the instance of illicit export of Mandrax Tablets was specifically and clearly mentioned. The instance of illicit export of Mandrax Tablets in January, 1994 to Swaziland is covered by the proceedings in C.C.No.36 of 1995. Even in the application filed by the respondent before this Court for cancellation of the bail, it is categorically stated that all these offences were done in pursuance to a conspiracy hatched between the petitioner and others. The bail granted to the petitioner is not only for the offence relating to illicit export of Hashish to Israel but also for the illicit export of Mandrax Tablets to Swaziland, Since the said offences were committed in pursuance of a single conspiracy. The conspiracy to acquire, possess and conceal and export and traffic in Narcotic Drugs and Psychotropic Substances, viz. Hashish and Mandrax Tablets must be regarded as one transaction of acts committed in furtherance to or in pursuance of the conspiracy and are part of the same transaction. The respondent is not correct and also not justified in saying that the offence covered by C.C. No.36 of 1985, viz., illicit export of Hashish to Israel and the offence covered by the proceedings in F.No.48-1-3-95-NCB-MDS, viz. illicit export of Mandrax Tablets to Swaziland in January, 1994 are separate and distinct offences. The affidavit from the person who seized the Mandrax Tablets in Swaziland, photographs of the seized contraband and other documents received from the foreign country are totally inadmissible in evidence. The act of the respondent in re-arresting the petitioner by treating the illicit export of Mandrax Tablets as a distinct offence from the offence of illicit export of Hashish to Israel shows their mala fide intention to defeat the orders passed by this Court and the Supreme Court. The petitioner was re-arrested even before the communication of the order passed by the Supreme Court to the jail authorities. The respondent, in any event, ought to have obtained the permission of the Supreme Court before re-arresting the petitioner for the offence of illicit export of Mandrax Tablets to Swaziland, which was already within their knowledge. But this was not done. Even the Special Judge was not apprised of the same as also the remanding Magistrate, who was persuaded to remand the petitioner to judicial custody. Therefore, the petitioner\’s liberty has been deprived of in a manner otherwise than that is established by law. For all these reasons, the proceedings in F.No.48/1/3/95/NCB/MDS on the file of the respondent may be quashed and the petitioner may be set at liberty forthwith. On the other hand, Mr.C.A.Sundaram, learned Central Government Standing Counsel, appearing on behalf of the respondent submitted as under: In F.No.48/1/3/94/NCB/MDS (C.C.No.36/95), regarding illicit export of Hashish to Israel, summons was sent to the petitioner to appear before the respondent on 27.6.1994. Accordingly, the petitioner appeared before the respondent and gave a voluntary statement before the respondent. In the said statement he has given a detailed account of his involvement and the involvement of co-accused viz. Y.V. Nagaraj, G.N.Venugopal and M.Arumugam in the illicit export of Hashish to Israel. In the said statement, the petitioner also mentioned about the illicit export of Mandrax Tablets to M/s. Dynamic Electronics Pvt. Ltd., Annffrere, South Africa. Except this statement of the petitioner, there was no other material available at that time to establish that there was illicit export of Mandrax Tablets in January, 1994. So, the petitioner was arrested on 27.6.1994 only for the offence of illicit export of Hashish to Israel and he came to be remanded only for that offence. The statement of the petitioner regarding illicit export of Mandrax Tablets was mentioned in the remand report with a view to impress the remanding Magistrate that the petitioner is involved not only in the offence of illicit export of Hashish but also, on his own admission, involved in the illicit export of Mandrax Tablets so that the court will take a serious view in the matter of grant of bail. According to the learned Standing Counsel, to arrest a person under Sec.41 (2) the Officer should have a reasonable belief, whereas under Sec.41 of Crl.P.C. a police officer can arrest a person concerned in a cognizable offence even on a reasonable suspicion. On 10.4.1995 respondent received a fax message from the Drug Liaison Officer, H.M.Customs & Excise, Bombay stating that there has been a seizure of Mandrax Tablets in Swaziland. The respondent sought for further clarification on 18.4.1995 regarding the seizure of Mandrax Tablets. The D.L.O, Bombay sent a fax message on 1.5.1995 enclosing the sworn affidavit of Mr.Charles Pieter, Detective Warrant Officer, South African Police who had actually participated in the seizure of Mandrax Tablets and in whose possession the documents and samples of the tablets seized were available. Only thereafter, the suspicion entertained by the respondent transformed into reasonable belief, leading to the registration of a separate case in F.No.48/1/3/95/NCB/MDS on 1.5.1995. Since the petitioner was confirmed to the Central Prison, Madras in C.C. No.36 of 1995 (the case relating to illicit export of Hashish to Israel), the Special Court had issued a P.T. Warrant to the Superintendent of Central Prison, Madras directing him to produce me petitioner before the court on 5.5.1995 for further proceedings in C.C.No.36 of 1995, the respondent filed a memo before the Special Court on 2.5.1995 seeking permission to arrest the petitioner in connection with the proceedings in F.No.48/1/3/95/NCB/MDS (Case relating to illicit export of Mandrax Tablets) The Special Judge, after perusal of the records, passed an order on 2.5.1995 permitting the respondent to arrest the petitioner. The petitioner was arrested on 2.5.1995 and he was served with the grounds of arrest. The respondent never requested the Special Court for issuance of any arrest warrant, as alleged by the petitioner. Therefore the arrest of the petitioner is justifiable and warranted in view of the materials available against him in F.No.48/1/3/95/NCB/MDS. These materials have been set out in the First Remand Report and also the Second Remand Report. In both these remand reports, the fax message and the annexure thereto received from the foreign country through the British D.L.O. were enclosed and on being satisfied about the materials remand was granted at the first instance and it was extended thereafter. After arresting the petitioner, the respondent is following up the matter and the investigation is in progress in accordance with law. The reference to the illegal export of Mandrax Tablets in the remand report was made only to bring to the notice of the Special Court the bad antecedents of the petitioner as per his own statement with a view to impress the court that the petitioner is a habitual offender and to take a serious view in the matter of granting bail. In fact, in the earlier remand application it is clearly mentioned that the petitioner was not sought to be remanded for the offence relating to illicit export of Mandrax Tablets, but for the offence of illicit export of Hashish to Israel.Therefore, the earlier arrest of the petitioner was only in connection with the offence of illicit export of Hashish to Israel and not for the offence for illicit export of Mandrax Tablets to Swaziland. The plea of the petitioner that in the remand application dated 27.6.1994 there is a reference to the export of Mandrax Tablets. That the respondent had included the transaction relating to illicit export of Mandrax Tablets in the said remand report itself, i.e. C.C. No.36 of 1995 and therefore the respondent cannot now arrest the petitioner for illicit export of Mandrax Tablets, treating it as a separate and distinct offence, is unsustainable. The respondent never prayed for any issuance of arrest warrant and never persuaded the Special Judge to issue a warrant of arrest. The respondent only requested the permission of the Special Judge to arrest the petitioner for a totally new independent offence relating to illicit export of Mandrax Tablets since the petitioner happened to be inside the prison at that time and a P.T. warrant issued by the Special Judge under NDPS Act earlier was pending at that time. The Special Judge after careful consideration of the materials placed before him and on being satisfied that the respondent is justified in arresting the petitioner afresh, granted permission. Therefore the petitioner is not correct in saying that the Special Judge was persuaded to treat the petitioner as remand prisoner under order of remand passed by him and his continuance as remand prisoner as on 2.5.1995 was valid and justified to issue a warrant for arrest. It is not correct to state that on the basis of warrant of arrest issued by the Special Judge, the respondent moved the remanding Magistrate for remanding the petitioner in judicial custody in the new case relating to illicit export of Mandrax tablets. No remand order was issued by the Magistrate, Egmore, on the basis of the said Warrant for arrest. The remand on 2.5.1995 is a fresh and separate remand and not a continuation of remand relating to arrest for illicit export of Hashish. The respondent has not persuaded the Economic offences court to remand the petitioner for a period of 15 days on the basis of any warrant of arrest obtained from the Special Judge. Therefore, the contention of the petitioner that the sequence of events would show that by serious suppression of very vital and material factors, the petitioner\’s liberty has been taken away and since by order dated 1.5.1995 the Supreme Court confirmed the grant of bail, the petitioner cannot be illegally confined to any prison lacks factual basis. The steps taken by the respondent in arresting the petitioner for illicit export of Mandrax Tablets on 2.5.1995 are perfectly justifiable and is in accordance with law. The order of the Supreme Court has not been violated in any manner. It was only on 1.5.1995 tangible materials disclosing involvement of the petitioner in the illicit export of Mandrax Tablets came to light, giving rise to a reasonable belief for taking action against the petitioner and he was arrested on 2.5.1995. Therefore the petitioner cannot contend that the arrest was designed to set at naught the order of the Supreme Court and this Court. In fact, bail granted in C.C.No.36 of 1995 was only in connection with the offence of illicit export of Hasish to Israel as the earlier arrest was for the offence of illicit export of Hasish to Israel alone, and not for illicit report of Mandrax Tablets. The proceedings in C.C.No.36 of 1995 are totally irrelevant for the purpose of deciding the legality of his detention in the light of the materials that have been produced before the Special Judge clearly establishing a case of illicit export of Mandrax Tablets. The proceedings in C.C.No.36 of 1995 and the orders of this Court and the Supreme Court cannot have any bearing on the arrest that has been made regarding the illicit export of Mandrax Tablets. Petitioner cannot attribute mala fide on the part of the respondent in arresting him on 2.5.1995, one day after the order of the Supreme Court, and cannot contend that such arrest was made only to defeat the order of the Supreme Court, because it was only on 1.5.1995 the respondent gathered definite information about the seizure of the illicitly exported Mandrax Tablets by K.J.Exports and entertained a reasonable belief that the petitioner is involved in the illicit export of Mandrax tablets for taking action under Sec.41(2) of the N.D.P.S.Act. It is just a coincidence that these materials came to light on 1.5.1995, which happened to be the date of passing of the Supreme Court\’s order. The petitioner cannot take advantage of this coincidence. The order of the Supreme Court is in no way concerned with the arrest of the petitioner on 2.5.1995 and he cannot contend that this is a re-arrest. Even before the order of the Supreme Court is formally communicated to the petitioner, it was a peculiar coincidence that tangible materials came to light only on 1.5.1995, which happened to be the date of order of the Supreme Court, and so no mala fide can be attributed on the part of the respondent in taking action against the petitioner in accordance with law. Since it was only on 1.5.1995 these materials came to light, the question of informing the Supreme Court of these materials cannot and does not arise. The order of the Supreme Court does not in any way relate to the present seizure of Mandrax Tablets and the consequent arrest of the petitioner. The arrest and remand of the petitioner is justified, valid and in accordance with law. The petitioner cannot have any grievance for the action lawfully taken by the respondent in the matter of detection and further proceedings in this regard. Therefore, the habeas corpus petition filed by the petitioner is totally devoid of merits and deserves to be dismissed. We have heard the rival submissions and perused carefully the documents filed in this habeas corpus petition. We have already set out the facts in detail. As stated earlier, the petitioner was arrested by the respondent on 27.6.1994 and remanded to custody from 28.6.1994 for the illicit export of Hashish to Israel. Later on he was enlarged on bail by order dated 25.7.1995, which was confirmed by this Court by order dated 19.1.1995 Crl.O.P. No.6552 of 1995 and also by the order of the Supreme Court dated 1.5.1995, in Crl. Appeal Nos.289 and 290 of 1995. On 2.5.1995 the petitioner was arrested by the respondent for the offence of the illicit export of Mandrax Tablets to South Africa in January, 1994. According to the petitioner his present detention is illegal because his arrest on 27.6.1994 was not only for the offence of illicit export of Hashish to Israel, but also for the offence of illicit export of Mandrax Tablets to South Africa and in view of the order dated 1.5.1995 passed by the Supreme Court, confirming the bail granted to the petitioner. But, according to the respondent the earlier arrest and remand of the petitioner was only in connection with the offence of illicit export of Hashish to Israel and not for the illicit export of Mandrax Tablets to South Africa, which is separate and distinct offence. The substantiate his contention that his arrest on 27.6.1994, was not only for the illicit export of Hashish, but also for the illicit export of Mandrax Tablets, the petitioner relied on the remand report filed by the respondent in C.C. No. 36 of 1995, and contended that in the remand report it is stated that the petitioner was involved in the alleged illicit export of Narcotic Drug and Psychotropic Substance. The said remand report relied upon the voluntary statements of the petitioner and other co-accused to say that there were illegal exports between April, 1992, to March, 1994 of Mandrax Tablets to South Africa and also two consignments of Hashish to Israel. It is further stated in the remand report that petitioner and the other co-accused had entered into a criminal conspiracy during April, 1992 to March, 1994 to acquire, possess, conceal and export narcotic drugs and psychotropic substance, viz. Hashish and Mandrax and had contravened the provisions of Sec.8 Sec.23, and Sec.29 of the N.D.P.S.Act, 1985 punishable under Secs.21 and 25 read with Sec.29 of the said Act. The petitioner also relied on the voluntary statement given by him in which there is a statement to the effect that in January, 1994, an export was made to M/s. Dynamic Electronics, South Africa which contained illicit export of Mandrax Tablets, concealed in electric bulbs. So also, in the counter filed by the respondent opposing the bail application, the respondent mentioned clearly that in January, 1994, an export was made to M/s. Dynamic Electronics, South Africa of Mandrax Tablets concealed in electrical bulbs and that the export was made in the name of K.J. Exports. The respondent also stated in the remand report that all these were done in pursuance to a conspiracy, hatched between the petitioner and other unknown persons and several consignments of Narcotic Drug and Psychotropic Substance were exported outside India. One such instance was the illicit export of Psychotropic Substance to South Africa in January, 1994, Therefore, according to the petitioner, his earlier arrest and remand was not only for the offence relating to seizure of Hashish at Israel, but also for the alleged illicit export of Mandrax Tablets to South Africa in January, 1994 by KJ.Exports. According to the petitioner, these two offences were committed pursuant to a single conspiracy and they must be treated a single transaction. Therefore his present detention for the alleged illicit export of Mandrax Tablets is illegal. The respondent designed the present proceedings, treating the illicit export of Mandrax Tablets to South Africa a new and distinct offence, only for the purpose of defeating the order dated 1.5.1995 passed by the Supreme Court. On the other hand, it is the case of the respondent that illicit export of Hashish to Israel and illicit export of Mandrax Tablets to South Africa are two separate and distinct offences, arising out of different transactions. According to the respondent, though there is a mention in the voluntary statement of petitioner that there was also an illicit export of Mandrax Tablets to M/s. Dynamic Electronic Private Ltd., South Africa, there was no other tangible material to entertain a reasonable belief that the petitioner is involved in the offence of illicit export of Mandrax Tablets and, therefore, the respondent was not in a position to arrest the petitioner at the time for his involvement in the illicit export of Mandrax Tablets to South Africa. It was only on 1.5.1995 the respondent received definite and tangible information regarding seizure of 20,34,000 Mandrax Tablets in Swaziland which was illicitly exported from Madras, stuffed in a container bearing MAXU 203544-2 through M/s K.J. Exports, a case was registered on 1.5.1995. In F.No.48/1/3/95/NCB/MDS and the petitioner was arrested on 2.5.1995. Therefore, his earlier arrest on 27.6.1994 in C.C.No.36 of 1995 was relating to the offence of illicit export of Hashish to Israel and not for the illicit export of Mandrax Tablets. Arrest memo dated 27.6.1994 clearly shows that the petitioner was arrested for illicit export of Hashish to Israel, and he came to be remanded for that offence only. According to the respondent, in the remand report the information conveyed by the petitioner about the illicit export of Mandrax tablets was also mentioned with a view to impress the remanding Magistrate that the petitioner is involved not only in the illicit export of Hashish to Israel but also on his own admission he is involved in the illicit export of Mandrax Tablets, so that the court will take a serious view in the matter of grant of bail. According to the respondent, to exercise a power under Sec.41(2) of the N.D.P.S. Act the officer must have a reasonable belief before effecting arrest of a person, whereas under Sec.41 of Crl.P.C. a Police Officer can arrest a person concerned in a cognizable offence even on a reasonable suspicion. It is only on 1.5.1995 when the respondent received the sworn in affidavit of Mr.Charles Pieter, Detective Warrant Officer, South African Police, who had actually, participated in the seizure of Mandrax Tablets in Swaziland and in whose possession the documents and samples of the tablets seized were available, the suspicion entertained by the respondent till then transformed into a reasonable belief leading to the registration of a separate case in F.No.48/1/3/95/NCB/MDS on 1.5.1995 for the offence relating to illicit export of Mandrax Tablets to South Africa. It was also submitted by the respondent that it has filed a letter Regotary under Sec. 166A of the Crl.P.C. to United Kingdom and have taken steps through the Indian High Commission, South Africa to obtain statements on oath from the officer who first intercepted the transport carrying the contraband viz. Mandrax Tablets and also from the officers who had actually seized the contraband at Swaziland and to collect the documents relating to the search and seizure, the Chemical Examiner\’s report and the samples seized from the contraband. While considering the provisions of Sec. 167(2) Crl.P.C. the Supreme Court in the case of C.B.I. Special Investigation Cell-1. New Delhi v. Anupam J. Kulkarani, A.I.R. 1992 S.C. 1768 held as under:\’In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Sec. 167. However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody. If best must be made in this connection explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of Sec. 167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued would seriously hamper the very investigation or the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same.\’. Similarly the Supreme Court in Banwari Lal Jhunjhunwala v. Union of India, A.I.R. 1963 S.C 1620: 1963 S.C.R. (Supp.) 2338: (1963)2 Crl.L.J. 220, while considering the provisions of Sec.233, Crl.P.C. held as-under:\”The expression \’every distinct offence\’must have a different content from the expression every offence\’or\’each offence\’- A separate charge is required for every distinct offence and not necessarily for each separate offence. The question is, what is meant by \”every distinct offence? \’Distinct\’means\” not identical. It stresses characteristics that distinguish while the word \”separate\”. Two offences would be distinct if they be not in any way inter-related. If there stress the \”two things not being the same\”. Two offences would be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not.\”.
(3.) IN the case of Bhagwan Swarup v. State of Maharasthra, A.I.R. 1965 S.C. 682: (1964)2 S.C.R. 378: (1964)2 S.C.J. 771: (1965)1 Crl.L.J. 608, while considering the provisions of Art.29(2) of the Constitution of INdia. The same offence on the following facts, viz. the previous case in which the accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter Company. There in it was found that the accused was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter Company in his favour. The subsequent case related to a different conspiracy altogether. The conspiracy in question was to lift the funds of the Empire Company, though its object was to cover up the fraud committed in respect of the Jupiter Company, it was held as under: \”it might be that the defalcations made in Jupiter Company afforded a motive for the new conspiracy, but the two offences were distinct ones. Some accused might be common to both of them some of the facts proved to establish the Jupiter Company conspiracy might also have to be proved to support the motive for the second conspiracy. But that in itself would not be sufficient to make the two conspiracies the one and the same offence. In the case of Ramesh Kumar Ravi v. State of Bihar (F.B), 1987 Crl.L.J. 1489 while considering the provisions of Secs. 167 and 309, Crl.P.C, it was held as under:\”The true test for the legality or otherwise of the detention is on the date of the hearing itself. A defect in an earlier order of remand of an accused person is not incurable and he cannot claim a writ of habeas corpus on that score alone if one the date of hearing he is in custody under a valid order of remand.\”. In Pukhraj v. D.R. Kohil, A.I.R. 1962 S.C. 1559, the Supreme Court while considering the provisions of Sec.178-A of Sea Customs Act with regard to what is reasonable belief, it was held as under:\”When the court is dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not the court is not sitting in appeal over the decision of the said officer. All that it can consider is whether there is ground which can prima facie justifies the said reasonable belief. A person carrying a large quantity of gold and round travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the person had travelled all the way from Calcutta at which place the gold must have been smuggled.\”. ;

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