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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Sunil Sharma
  • S.C.Chawla
  • A.T.N.Rangaramanujan
Judges
  • S.K Agarwal, J.
Acts
  • Sections 20, 23 and 29 of the Narcotic Drugs and Psychotropic Sub-stances Act (for short, the Act),
  • Section 482, Code of Criminal Procedure, 1973
  • Section 114(e) of the Evidence Act
  • Section 167(2) of the Code,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Sunil Sharma
  • S.C.Chawla
  • A.T.N.Rangaramanujan
Judges
  • S.K Agarwal, J.
Acts
  • Sections 20, 23 and 29 of the Narcotic Drugs and Psychotropic Sub-stances Act (for short, the Act),
  • Section 482, Code of Criminal Procedure, 1973
  • Section 114(e) of the Evidence Act
  • Section 167(2) of the Code,
See more information ...
Smart Summary

Legal Opinion Summary — S.K. Agarwal, J.

Factual and Procedural Background

The petitioner challenged, under Section 482 of the Code of Criminal Procedure, 1973, two remand orders dated 13.3.2005 and 15.3.2005 (Duty Magistrate and Additional Sessions Judge respectively) that remanded him to judicial custody in a prosecution under Sections 20, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act.

The prosecution case, as recorded in the opinion, states that in November 2004 a consignment declared as book-cover samples exported to Seychelles by one V.K. Pillay was found by Seychelles authorities to contain 6.78 kg of hashish. The contraband was seized and information sent to the Indian Customs Department via Interpol. Investigations purportedly revealed that the consignment had been sent by the petitioner, who was the Managing Director of M/s. V.K. International Pvt. Ltd., in the name of M/s. M.R. Overseas. The petitioner was summoned and—according to the prosecution—made a statement admitting that he sent the consignment. Other incriminating material allegedly was recovered.

The investigating officer arrested the petitioner and produced him before the Duty Magistrate; the officer applied for judicial remand stating that investigations were in early stages and required overseas inquiries. The Duty Magistrate remanded the petitioner for two days to judicial custody on 13.3.2005, directing production before the concerned Court. On 15.3.2005 the petitioner was produced before the Additional Sessions Judge (Special Judge) and was remanded to judicial custody again (until 29.3.2005). Subsequent remands to judicial custody were also made on similar applications.

Note: The opinion text contains two different arrest dates referenced in different paragraphs (one instance records arrest as 13.3.2003 and other passages refer to 13.3.2005). The summary above reproduces the factual narrative as stated in the opinion without reconciling that discrepancy.

Legal Issues Presented

  1. Whether the remand orders of 13.3.2005 and 15.3.2005 (judicial custody remands) are vitiated because copies of the entries in the investigating officer's case diary were not forwarded to the Court as required, thereby rendering the remands unlawful.
  2. Whether it is mandatory for the investigating agency to expressly state in the remand application that case diaries are being produced to the Magistrate/Court and, relatedly, whether the Court must record in the remand order that it has perused the case diary before authorising judicial remand.

Arguments of the Parties

Petitioner's Arguments

  • Relying on Section 36A(1)(b) of the NDPS Act and Proviso (a) to Section 167(2) of the Code, counsel argued that a Magistrate can authorize detention (including judicial custody) only after being satisfied that adequate grounds exist; that satisfaction cannot be reached unless copies of the case diary entries required under Section 167(1) are before the Court.
  • There is nothing in the remand orders to show that copies of the case diaries were available to or perused by the Court; the use of the words "Heard" and "Considered" in the orders does not establish that the diaries were produced or examined.
  • The validity of statutory functions (such as authorising remand) must be judged by the reasons recorded in the order itself and cannot be supplemented later by affidavit or other material.
  • The petitioner relied on several authorities to support these propositions, including: Shrawan Waman Nade v. State of Maharashtra (1994 Crl. LJ 780), Pallasanna Haneeta v. State of Kerala (AIR 1996 Kerala 229), Mahmudkhan v. King Emperor (1945 Nagpur Law Journal 122), Elumalal v. State of Tamil Nadu (1983 Law Weekly (Crl.) 121) and Mohinder Singh Gill v. Chief Election Commissioner, New Delhi ((1978) 1 SCC 405, AIR 1978 SC 851).

Respondent's Arguments

  • The respondent (Commissioner of Customs) stated that after arrest the petitioner was produced before the Duty Magistrate on 13.3.2005 and before the Special Judge on 15.3.2005, and that the case file containing documents received from Seychelles, documents recovered from the accused and statements of the accused and other witnesses were produced before the Courts whenever the remand applications were moved.
  • The investigating officer's applications contained summaries of the investigations carried out; the learned Courts, after hearing arguments and perusing the case file, remanded the accused to judicial custody.
  • The respondent relied on the Supreme Court decision in Kanti Bhadra Shah v. The State of West Bengal (2000 [1] JCC [SC] 100) for the proposition that detailed orders are not required at the remand stage.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shrawan Waman Nade v. The State of Maharashtra, 1994 Crl. LJ 780 Relied upon by petitioner for the proposition that validity of statutory functions must be judged by reasons recorded in the order and that remand orders must reflect requisite material being before the Court. The Court stated that it was not necessary to refer in detail to facts of cited cases and held that the ratio of these decisions was not applicable to the facts at hand; therefore it did not grant relief based on this authority.
Pallasanna Haneeta v. State of Kerala, AIR 1996 Kerala 229 Relied upon by petitioner to support the need for reasons/recorded material when authorising detention or remand. The Court considered the authority but held the ratio not applicable to the present facts and did not rely on it to set aside the remand orders.
Mahmudkhan v. King Emperor, 1945 Nagpur Law Journal 122 Relied upon by petitioner as precedent touching on form and validity of orders authorising detention. The Court noted the citation but found the ratio inapplicable to the facts before it and did not apply it to invalidate the remand orders.
Elumalal v. State of Tamil Nadu, 1983 Law Weekly (Crl.) 121 Relied upon by petitioner for the proposition that reasons for detention should appear in the record and orders. The Court recorded that it was unnecessary to examine the detailed facts of the authorities and found their ratio inapplicable to this petition.
Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, (1978) 1 SCC 405; AIR 1978 SC 851 Relied upon by petitioner to support the proposition regarding the necessity of reasons or recorded material to justify official/judicial acts. The Court did not apply this decision to grant relief and observed that each case depends on its facts; the ratio was held not to be applicable on the facts of this case.
Kanti Bhadra Shah v. The State of West Bengal, 2000 [1] JCC [SC] 100 Relied upon by respondent to show that detailed orders are not required at the stage of authorising judicial remand. The Court treated this as settled law, observing that the Court is not expected to pass detailed orders when authorising judicial remand; this principle informed the Court's conclusion that the impugned remand orders did not exhibit illegality or impropriety.

Court's Reasoning and Analysis

The Court's analysis proceeded through the following steps, grounded in the material and arguments placed before it:

  1. Production and applications: It was undisputed that the petitioner was physically produced before the Courts on the dates the impugned remand orders were passed and that remand applications containing summaries of allegations and reasons for judicial remand were moved by the investigating officer.
  2. Statutory and evidentiary framework: The Court recalled that the investigating officer may seek remand under Section 167 of the Code when there are grounds to believe the accusation is well-founded and further investigation cannot be completed within 24 hours, and that the accused must be produced so the grounds can be contested if desired. The Court also noted Explanation 2 to Section 167 permitting proof of production by signature on the detention order.
  3. Meaning of words used in the remand orders: The remand orders contained the expressions "Heard" (13.3.2005) and "Considered" (15.3.2005). The Court relied on dictionary meanings (from Black's Law Dictionary) to indicate that these words connote deliberation and adjudicative action and are not meaningless formulae.
  4. Presumption of regularity: The Court invoked Section 114(e) of the Evidence Act—presumption that judicial and official acts are rightly and regularly performed—stating that where a judicial authority with jurisdiction passes an order, it cannot be treated as void unless proved otherwise. The Court held that whether case diaries were produced is a question of fact and not simply a matter of supplying an additional ground for the order.
  5. Affidavit evidence: The respondent filed an affidavit by a public servant asserting that the Courts, after hearing arguments and perusing the case file, remanded the accused to judicial custody. The Court found no cogent reason to disbelieve the affidavit of the public servant in discharge of official duties.
  6. On the necessity of detailed reasons at remand stage: The Court accepted the respondent's submission (backed by the Kanti Bhadra Shah decision) that detailed orders are not required while authorising judicial remand. The Court therefore did not treat the brief language of the remand orders as indicative of a mechanical or improper exercise of jurisdiction.
  7. Conclusion on precedents relied by petitioner: The Court observed that it was unnecessary to go into the detailed facts of the cases cited by the petitioner and held that the ratio of those decisions was not applicable to the facts of the present case.
  8. Final evaluative step: Given the presumption of regularity, the affidavit statement that the case file was produced and perused, the absence of any contemporaneous objection by the accused that diaries were not produced, and settled law that detailed reasons are not required at the remand stage, the Court found no illegality or impropriety in the impugned remand orders.

Holding and Implications

Holding: The petition was dismissed. The Court concluded there was no merit in the challenge to the remand orders; accordingly, it ordered that the trial court record be sent back.

DISPOSED OF

Implications

  • Direct effect: The immediate consequence is that the remand orders dated 13.3.2005 and 15.3.2005 stand; the petition seeking their quashing under Section 482 CrPC was dismissed and the trial court record was directed to be returned.
  • On precedent and broader law: The Court emphasized that detailed reasons are not obligatory at the stage of judicial remand (citing Kanti Bhadra Shah). The opinion expressly states that the ratios of several decisions relied upon by the petitioner were not applicable to the facts at hand. The Court did not state that it was laying down any new principle of law; it applied established presumptions (Evidence Act Section 114(e)) and existing authority to the facts. Therefore, no new precedent or expansive legal rule was announced beyond the Court's application of existing principles to these facts.
Petition dismissed.
Show full summary ...

    Vinod Kumar Gupta v. Commissioner Of Customs .

    S.K Agarwal, J.— By this petition under Section 482, Code of Criminal Procedure, 1973 (for short, ‘the Code’), petitioner has challenged orders dated 13.3.2005 and 15.3.2005 passed by the Duty Magistrate and Additional Sessions Judge respectively, remanding the petitioner to judicial custody, in the case under Sections 20, 23 and 29 of the Narcotic Drugs and Psychotropic Sub-stances Act (for short, ‘the Act’), on the application filed by Customs Department.

    2. Prosecution case in brief is as follows: In November, 2004 a consignment declaring to be samples of book covers was exported to Seychelles by one V.K Pillay. The authorities in Seychelles on suspicion checked the consignment and it was found containing 6.78 kg. of Hashish. The contraband was seized and information was sent to the Customs Department in India through Interpol. Investigations revealed that the said consignment was sent by-the petitioner, Managing Director of M/s. V.K International Pvt. Ltd., in the name of M/s. M.R Overseas. Petitioner was summoned and his statement was recorded. In his statement, petitioner admitted that the said consignment of Hashish was sent by him. Some other incriminating material was also found against the petitioner, on the basis of which he was arrested on 13.3.2003, under the above-noted sections, by the Air Cargo (Export), Customs Department, New Delhi and was produced before the Duty Magistrate, Patiala House, New Delhi. The investigating officer moved an application before the Court, stating above facts and pleading that the investigation in the case is at the initial stage, the matter is required to be investigated overseas and prayed that the accused be sent to judicial custody. The Duty Magistrate heard the case and remanded the accused to judicial custody for two days, directing him to be produced before the concerned Court. On 15.3.2005, petitioner was produced before the Court of Additional Sessions Judge (Special Judge), Delhi. The Investigating Officer moved fresh application for further judicial remand pleading above facts, and again submitted that investigations abroad are in progress and prayed for judicial remand of the accused petitioner for 14 days. Learned Court ‘considered’ the matter and remanded petitioner to judicial custody till 29.3.2005 On similar applications, subsequently accused was remanded to judicial custody from time to time. These orders are under challenge, inter alia, on the grounds that copy of the entries in the case diaries were not forwarded to the Court by the Investigating Officer, when the impugned orders were passed, which is in violation of law, therefore, petitioner is entitled to be released. The Commissioner of Customs (respondent) has filed the reply, stating that after arrest petitioner was produced before the Duty Magistrate on 13.3.2005 and before the Special Judge on 15.3.2005 The case file consisting of documents received from Seychelles, documents recovered from possession of the accused and also statement(s) of the accused and other witnesses were produced before the Courts whenever application for judicial remand of the petitioner was moved. The learned Court(s) after hearing arguments and perusing the case file, remanded the accused to judicial custody.

    3. I have heard learned senior Counsel for the petitioner and learned Special Prosecutor for the respondent.

    4. Learned Counsel for the petitioner referring to Section 36A(1)(b) of the Act, argued that whenever a person/accused of or suspected of the commission of an offence under this Act, is forwarded to a Magistrate under Section 167(2) of the Code, such Magistrate is empowered to authorize detention of such person, in such custody, as he thinks fit, for a period not exceeding fifteen days. Learned Counsel then referring to Proviso (a) to Section 167(2) argued that judicial custody remand could be granted only after recording ‘satisfaction’ that adequate grounds exist for doing so. This satisfaction could not be reached in the absence of the copy of the entires in the case diary, required to be forwarded to the Court under Section 167(1). Learned Counsel argued that there is nothing to show in the orders that copies of case diaries were available before the Court, which shows that said orders were passed mechanically. Learned Counsel argued that from use of the expressions ‘Heard’ and ‘Considered’ in the orders, it cannot be presumed that the diaries were produced or perused by the Court, while authorising judicial custody remand. Learned Counsel lastly argued that validity of the statutory functions must be judged by the reasons mentioned in the order and it cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In support of his submissions, reliance is placed on the observations made in Shrawan Waman Nade v. The State of Maharashtra, 1994 Crl. LJ 780; Pallasanna Haneeta v. State of Kerala, AIR 1996 Kerala 229 (V 53 C 57); Mahmudkhan v. King Emperor, 1945 Nagpur Law Journal, 122 and decision of Madras High Court in Elumalal v. State of Tamil Nadu, 1983 Law Weekly (Crl.) 121; and Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, (1978) 1 SCC 405 : AIR 1978 SC 851).

    5. Learned Counsel for the respondent argued to the contrary submitting that as per allegations petitioner had sent the consignment of 6.78 kg. of Hashish, declaring it to be sample of book covers, under the name of M/s. M.R Overseas which was seized in Seychelles. On receipt of information through Interpol investigations were taken up; the accused was arrested on 13.3.2005; and was produced before the Duty Magistrate; and on 15.3.2005, he was again produced before the Court of Special Judge. The investigating officer moved application(s) containing summary of the investigations carried out and the case file was also produced before the Court. Learned Counsel argued that detailed orders are not required to be passed at this stage of remand; and in support of his submissions reliance was placed on the Supreme Court decision in Kanti Bhadra Shah v. The State of West Bengal, 2000 [1] JCC [SC] 100.

    6. The right to liberty is a precious one, and no person can be deprived of this right and detained in jail without following the procedure established by law. The investigating officer can ask for remand under section 167 of the code only when there are grounds for believing that the accusation or information is well founded and it appears that the investigations cannot be completed within the period of 24 hours. It is obligatory that the accused should be physically produced before the Court at the time when the investigating officer applies for remand and the grounds on which the remand is sought should also be put up before the Court, in the presence of the accused, so that if the accused wants to controvert those grounds, he could do so. When the question arises whether the accused was produced before the Court or not, Explanation 2 to Section 167 provides that same fact can be proved by his signature on the order authorising detention. In this case it is not in dispute that petitioner was produced before the Court on both the dates when the impugned orders were passed; it is also not in dispute that applications were made, containing summary of allegations and reasons why his judicial remand was required. The requirement of sending the case diary along with the remand request is also of the mandatory character. The case of the prosecution is that copies of the case diaries maintained by the investigating officer were produced at the time of remand and the same were perused when the impugned orders were passed. On the other hand, the case of the petitioner is that case diaries were never produced and there is nothing in the application or the order to show that copy of the case diaries were produced before the Court and in the absence of the same, the impugned orders are not sustainable.

    7. The questions which arise for consideration are whether it is mandatory for the investigating agency to mention in the remand application that the case diaries are being produced and whether it is necessary for the Court to record in the remand order that the case diaries have been perused? In order to find an answer, it would be useful to recall the impugned orders, which read as under:

    “13.3.2005

    Sh. Sunil Sharma, SPP, Customs.

    The accused in PC.

    Inspector Sunil Kumar. Heard. The accused is remanded to J/C till 15.3.2005

    Be produced before Court.

    15.3.2005

    Present: Accused in J/C with Inspector Sunil Kumar, Investigating Officer and Sh. Sunil Sharma, SPP. Considered. Accused remanded to JC till 29.3.2005”

    8. Perusal of the order dated 13.3.2005 would reveal that Duty Magistrate ‘Heard’ the parties and then remanded the accused to two days judicial custody, directing him to be produced before the concerned Court. There is nothing in order to indicate that the hearing was without copies of the case diaries. The accused did not move any application stating that the copy of case diaries were not produced on that day or on the next date. On 15.3.2005, learned Special Judge again ‘Considered’ the prayer and remanded the accused to judicial custody. The Black's Law Dictionary (Sixth Edition) defines the word ‘Considered’ to mean, deemed; determined; adjudged; reasonably regarded; and the expression ‘Heard’ has a similar meaning. Section 114(e) of the Evidence Act provides that all judicial and official acts are presumed to have been rightly and regularly performed. The presumption under Section 114 will come to the aid of the party if the party proves that the judicial or official act has been done or performed. In other words, if the Court or authority, who has the jurisdiction to deal with the matter passes an order, the same cannot be treated as void, unless it is proved otherwise. The question whether case diaries were produced or not, is a question of fact and not a case of supplying additional ground, to support an order. The respondent has filed an affidavit stating that learned Courts, after hearing the arguments and perusing entire case file, remanded the accused to judicial custody. The affidavit is by the pubic servant in discharge of his duties and there is no cogent reason to disbelieve the same.

    9. It is settled law that the Court is not expected to pass detailed order while authorising judicial remand of the accused, as held by the Supreme Court in Kanti Bhadra Shah's case. It is not necessary to refer to in detail the facts of the cases cited by learned Counsel for the petitioner. Each case depends on its own facts. The ratio of these decisions is not applicable to the facts at hand. There is no illegality or impropriety in the impugned orders to warrant interference.

    10. For the foregoing reasons, I find no merit in the petition and the same is accordingly dismissed. Trial Court record be sent back.

    Petition dismissed.
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    Comments

    Vinod Kumar Gupta v. Commissioner Of Customs .
    (Sep 1, 2005)