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Judgment
The detenu, 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 Sections 8,23,29 of the N.D.P.S. Act, punishable under Sections 21 and 25 read with Section 29 of the said Act. The illicit
export was made in the name of K.J. Exports, Madras. Petitioner filed Crl.M.P. 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/l/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 2.5.1995. 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.
48/1/3/95/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.
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 of the Special Judge 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 think that the Petitioner
was still in judic custody and therefore under his jurisdiction a remand prisoner is 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 u/s 44 of Code of
Criminal Procedure. 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 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 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. Hash(sic) and Mandrax Tablets must be regarded as (sic) transaction of acts committed in further-(sic)e to or in pursuance of the
conspiracy and (sic) 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 1995 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 u/s
41(2) the Officer should have a reasonable belief, whereas u/s 41 of Code of Criminal Procedure 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 and 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 DLO 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. 36/95 (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 the Petitioner before the court on 5.5.1995 for
further proceedings in C.C. No. 36/95, 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 Hasish to Israel. Therefore, the earlier arrest of the Petitioner was only in connection with the offence of illicit
export of Hasish to Israel and not for the offence of 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. 36/95 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 invalid 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 Hasish. 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 justificable 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 actions against the Petitioner and he was arrested on 2.5.1995. Therefore the Petitioner
cannot contend that the arrest was designed to set at nought the order of the Supreme Court and this Court. In fact, bail granted in C.C. No.
36/95 was only in connection with the offence of illicit export of Hashish 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. 36/95 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. 36/95 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 in 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 u/s 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 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. 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 in 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 Hahish, but also
for the illicit export of Mandrax Tablets, the Petitioner relied on the remand report filed by the Respondent in C.C. No. 36/95, 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 Section 8, Section 23
and Section 29 of the NDPS Act, 1985 punishable u/s s 21 and 25 read with Section 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 K.J. Ex-ports.
According to the Petitioner, these two offences were committed pursuant to a single conspiracy and they must be treated as 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 Electronics
Private Limited, 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 that 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 illicit 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. 36/95 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 that 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 u/s 41(2) of the N.D.P.S. Act the officer must have a reasonable belief before effecting arrest
of a person, whereas u/s 41 of Code of Criminal Procedure 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 Peter, 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 Rugotary u/s 166A of the Code of Criminal Procedure 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 Section 167(2) Code of Criminal Procedure the Supreme Court in the case of Central Bureau of
Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, held as under:
In one occurrence it may so happen that the accused might 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 other of a serious nature at various stages and seek further detention in
police custody repeatedly, this would defeat the very object underlying Section 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 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 Section 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 (1963 2 SCR Supp. 338) while considering the provisions of
Section 233, Code of Criminal Procedure 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"" would stress the ''two things not being the same'', two offences would be distinct if they be not in any way inter-related. If there be some
inter relation, there would be no distinctness end 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.
In AIR 1965 SC 682 in the case of Bhagwan Swarup v. State Maharashtra, while considering the provisions of Article 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 the 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 1987 Cri.L.J. 1489 in the case of Ramesh Kumar Ravi v. State of Bihar (FB) while considering the provisions of Sections 167 and 309,
Code of Criminal Procedure, 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 on the date of hearing he is in custody under a valid order
of remand.
In Pukhraj v. D.R. Kohli (1962 S.C. 1559) the Supreme Court while considering the provisions of Section 178A 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 is 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 found 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 smuggle.
In Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, the Supreme Court, while considering the legality of the detention in a petition
for habeas corpus held that, ""in a petition for habeas corpus writ the earliest date with reference to, which the legality of the detention is to be
considered is the date of filing of the petition for such writ. Therefore, any defect in the legality of the detention of the Petitioner prior to the date of
filing the petition cannot affect the detention if it is legal on the date of petition.
On considering the facts arising in this case and on perusing the documents available on record we are of the opinion that the contentions of the
Respondent that mention was made in the earlier remand report about the illicit export of Mandrax Tablets to South Africa was only for the
purpose of impressing the special court to take a serious view in the matter of granting bail to the Petitioner and from the mere bald statement of
the Petitioner in his voluntary statement that Madrax Tablets were also illicitly exported to South Africa in January, 1994 alone would not be
sufficient to form a reasonable belief that the Petitioner is involved in the illicit export of Mandraz Tablets to South Africa in January, 1994 for
taking action against him u/s 41(2) of the N.D.P.S Act are well founded. The tangible materials showing the involvement of the Petitioner in the
illicit export of Mandrax Tablets to South Africa in January, 1994 came to the hands of the Respondent only on 1-5-1995. Therefore, his arrest on
27-6-1994 cannot be the one for illicit export of Mandrax Tablets to South Africa. On 27-6-1994 the Petitioner was summoned before the
Respondent only in connection with the offence of illicit export Hashish to Israel and the summons issued to the Petitioner did not whisper about
the illicit export of Mandrax Tablets to South Africa in January, 1994. Therefore the Petitioner is not correct in saying that his arrest on 27.6.1994
was not only for the offence of illicit export of Hashish to Israel, but also for offence that he was arrested for and charged with earlier. The
Supreme Court order in C.A. Nos. 611 and 612 of 1995 left open the power to detain on the basis of materials now available on merits thereby
safeguarding the right to arrest on another separate offence or even for ah offence made out on material now available. Even in the order passed by
this Court in Crl.O.P. Nos. 6552 and 6553 of 1994 dated 19.1.1995 no mention of export of Mandrax Tablets was made.
Once it is seen that the offence is not the same offence, the question is whether it was a distinct offence, that is, an offence not part of the same
transaction. As to what offences would be part of the same transaction is a question entirely of fact. The question of conspiracy would not be as
relevant as the question of commonness of transaction since the conspiracy may be a general conspiracy but there may be other transactions within
it or a series of transactions, each giving rise to separate offences. In fact, the offence of conspiracy is a distinct and separate offence from the
overt offences which may go about to make it conspiracy. In the instant case, the test of separate transactions would be necessary otherwise every
transaction of smuggling drugs would be part of a general conspiracy to smuggle drugs and would be treated to be part of the same transaction
which would lead to an absurdity where merely because a group of people. get together to smuggle drugs any individual transaction of smuggling
would not be deemed to be a distinct offence. Therefore, whether a transaction is different or not is a vital test. In fact, in the present case the
Petitioner is not, charged with conspiracy. Therefore, the offence of illicit export of Hashish to Israel is a separate and distinct offence from the
offence of illicit export of Mandrax Tablets to South Africa, and the proceedings in C.C. No. 36/95 was related to the earlier offence of illicit
export of Hashish and the present proceedings in F. No. 48/1/3/95/NCB/MDS is for the offence of illicit export of Mandrax Tablets. Therefore,
the enlargement of the Petitioner on bail in C.C. No. 36/95 would not vitiate his present arrest and detention for the offence of illicity export of
Mandrax Tablets.
At the final stage of investigation for the offence of illicity export of Hashish to Israel, when statements were taken reference was made to illicity
export of Mandrax Tablets to South Africa on that very day Petitioner was arrested and as would be clear from the arrest memo only for the
offence of illicity export of Hashish to Israel. The reason is that apart from the statement of the Petitioner, there was no tangible material, or even
suspicion of his involvement in the later offence of illicit export of Mandrax Tablets to South Africa and therefore he could not rightly have been
arrested for the illicit export of Mandrax Tablets. The material that would justify a reasonable belief became available only thereafter with actual
objective evidence becoming available only on 1.5.1995. Even the statements did not refer to the seizure of Mandrax Tablets in Swaziland so that
there was not even an objective yardstick to verify the commission of the offence charged against. Therefore, there was no reasonable belief
justifying an arrest for illicity export of Mandrax Tablets on the date of arrest for the offence of illicit export of Hashish. On considering the
submissions made by the learned Standing Counsel for the Respondent, we are also of the opinion that once it is prima facie appears that the
remand was with jurisdiction and was not ex facie illegal, an Habeas Corpus petition would not lie.
According to the Petitioner, the Respondent requested for the issue of an arrest warrant and that the Special Judge was persuaded to issue an
arrest warrant and in doing so, the Respondent has suppressed a very important and vital fact which was in all force and which should have been
brought to the notice of the Special Judge. However, the Respondent submitted that since on 2.5.1995, the Petitioner was in Central Prison at
Madras and since there was a P.T. Warrant pending against the Petitioner to cause his production before the Special Judge on 5.5.1995,
permission of the Court was found necessary to effect the arrest of the Petitioner in the new case and accordingly the Respondent tiled a memo
before the Special Judge on 2.5.1995. The Respondent never prayed for issue of an arrest warrant and never persuaded the Special Judge to
issue a warrant for the arrest of the Petitioner. The Respondent had only requested the permission of the Special Judge to effect the arrest for a
totally new and independent offence relating to illicit export of Mandrax Tablets, since he happened to be inside the prison and a P.T. Warrant had
been issued by the Special Judge earlier, which was pending at that time. The Special Judge, on a careful consideration of the materials placed
before him and on being satisfied that the Respondent is justified in arresting the Petitioner in connection with the new case accorded permission.
Therefore, the Petitioner cannot make out any grievance on the ground that there was suppression of any vital fact. It is also not correct to say that
the Special Judge was persuaded to treat the Petitioner as remand prisoner under an 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. Further, according to the Respondent, it is not correct to say
that it was on the basis of warrant of arrest that had been issued by the Special Judge on 2.5.1995 the Respondent moved the remanding
Magistrate, for remanding the Petitioner in judicial custody for the new offence relating to illicit export of Mandrax Tablets. Therefore, no warrant
or order of remand was issued on the basis of the warrant of arrest. Accordingly, the remand on 2.5.1995 is a fresh and separate remand and not
in continuation of the earlier remand relating to illicit export of Hashish to Israel.
According to the order passed by the remanding Magistrate, a Magistrate was deputed to remand the Petitioner and other co-accused viz. M.
Arumugam and G.N. Venugopal The said Magistrate proceeded to General Hospital where the Petitioner was an in-patient and after observing the
formalities, remanded him to judicial custody in F. No. 48/1/3/95/NCB/MDS after informing him that he is being remanded in the case relating to
illicit export of Mandrax Tablets to South Africa. Therefore it is clear that the Respondent has not persuaded the remanding Magistrate to remand
the Petitioner for a period of 15 days on the basis of any warrant of arrest obtained from the Special Judge. A perusal of the facts on this aspect
would reveal that the contention of the Petitioner that the sequence of events would show that by serious suppression of very vital and material
facts, the Petitioner''s liberty has been taken away and in the facts of this case since that Supreme Court on 1.5.1995 had confirmed the grant of
bail and dismissed the appeals tiled by the Respondent and that the Petitioner cannot be illegally confined to any prison lacks factual basis.
According to the Petitioner the action of the Respondent is mala fide in the matter of arresting the Petitioner and it was made to defeat the
orders of the Supreme Court and the High Court and would constitute gross abuse of process of law. On the other hand, the Respondent
submitted that since the definite information regarding illicit export of Mandrax Tablets came to the hands of Respondent only on 1.5.1995, which
is just a coincidence with the power of the Supreme Court, the Petitioner cannot be allowed to take advantage of this peculiar coincidence to make
out a case that the action of Respondent was to defeat the order passed by the Supreme Court, confirming the bail granted to the Petitioner in
C.C. No. 36/95. Once it is established that the offence of illicit export of Mandrax Tablets is a separate and distinct offence from the offence of
illicit export of Hashish and the earlier arrest and remand was related to the offence of illicit export of hasish alone and not for Mandrax Tablets,
the Petitioner cannot attribute any mala fide in the action taken by the Respondent and also cannot be contend that the present arrest and remand
was made only with a view to defeat the order of the Supreme Court. A plain reading of the order dated 1.5.1995 passed by the Supreme Court
would go to show that it does not in any way concerned with the illicit export of Mandrax Tablets to South Africa and the second arrest of the
Petitioner on this charge. Therefore, the Petitioner cannot contend that his liberty has been deprived in a manner other than procedure established
by law.
According to the Petitioner the affidavit of the officer who had actually seized the Mandrax Tablets in Swaziland and other documents received
from the foreign countries and filed in this case are inadmissible in evidence. On the other hand, the Respondent submitted that these documents
are vital and necessary as they form the basis for entertaining a reasonable belief that the Petitioner is involved in the illicit export of Mandrax
Tablets to South Africa for taking action against him u/s 41(2) of the N.D.P.S. Act. Further investigation is in progress. Hence the Petitioner
cannot now contend that the action of the Respondent in collecting the documents and evidence from the foreign countries for establishing a prima
facie case against the Petitioner for taking actions u/s 41(2) of the N.D.P.S Act. Therefore, it cannot be said that the Respondent cannot rely upon
those documents to make out a prima facie case for arresting the Petitioner for the illicit export of Mandrax Tablets to South Africa.
Thus in the instant case where the provisions of N.D.P.S. Act are involved there must be a reasonable belief of the Commission of the offence
to arrest the Petitioner u/s 14 of the NDPS Act. Hence the question is whether in the present case there was reasonable belief of commission of
offence of illicit export of Mandrax Tablets to Africa, sufficient to arrest the Petitioner. According to the facts arising in the present case neither the
information received nor the materials gathered from search nor the reasonable belief for issuance of summons u/s 63 ever whispered of or
indicated an offence involving the illicit export of Mandrax Tablets to South Africa. At the final stage of the investigation for the offence of illicit
export of Hashish to Israel when statements were recorded, reference was made with regard to illicit export of Mandrax Tablets to South Africa,
on that very day Petitioners were arrested and as would be clear from the arrest memo which means only for the offence of illicit export of Hashion
to Israel. The reason is that apart from the statements of the Petitioner, there was no material or even suspicion of their involvement in export of
Mandrax tablets to South Africa and therefore they could not have been rightly arrested for commission of the offence of illicit export of Mandrax
Tablets to South Africa. The material that would justify a reasonable belief became available only after 1.5.1995. It is significant to note that even
the statements did not refer to the seizure of Mandrax tablets in Swaziland. Hence there could not have been any reasonable belief justifying an
arrest for offence of export of Mandrax tablets on the date of arrest for offence of export of Hasish to Israel, that too on the basis of retracted
statements. Once it prima facie appears that the remand was with jurisdiction and was not ex facie illegal, a Habeas Corpus petition would not lie.
In Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others, it was held that, most of those grievances merely suggest that the cases
against him are not true and they have been engineered by some high placed individuals for mala fide reasons. This Court, does not, as a general
rule, go into such controversies in proceedings tor a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody
by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the
present is not such a case.
Whatever might be the position before the charge sheet for the offence of illicit export of Mandrax Tablets to South Africa has been filed and
the Petitioner is u/s 309 Code of Criminal Procedure remand, and while so, the remedy against such remand would be different than filing a
Habeas Corpus petition, since the Petitioner is hot under illegal detention and even assuming that the earlier remand is vitiated, it was not incurable
and so long as the remand today is in accordance with law, no writ of Habeas Corpus petition is entertainable. Accordingly, this Habeas Corpus
petition is dismissed.