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IN THE HIGH COURT HON’BLE SESSIONS JUDGE PUNE,

AT PUNE

CRIMINAL BAIL APPLICATION NO. OF 2021

Advait Prakash Deshpande )

Aged 45 years, Occu: Business )
Residing at. 610, 3rd Floor, )
Vitthal- Residence, Behind )
Deccansai Petrol Pump, Pune- 4) …Petitioner

Versus
The State of Maharashtra, )

Through Public Prosecutor )

at the instance of the Yarwada )

Police Station, Pune. )

CR. No. 483/2021 ) …Respondent

HUMBLE APPLICATION OF THE

APPLICANT ABOVENAMED UNDER
SECTION 167 OF CR.P.C FOR BAIL;

MOST RESPECTFULLY SHEWETH:

1. The Applicants by filing the present application in this Hon’ble

Court seeks to invoke power vested with this Hon’ble Court

under Section 167 of the Code of Criminal Procedure and inter-

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alia pray for release on bail in connection with C.R. No. FIR

No. 483 of 2021 with Yerwada Police Station, Pune under

section 406, 420, 464, 465, 468, 471, 182,199/200 r/w. 34,

120(b) and section 21 and 23 of Banning of Unregulated

Deposit Act.

2. It is really not necessary to burden the present application with

several other details leading to the filing of the same in this

Hon’ble Court, however, in nutshell the case of the respondent

is as under:

a. That the Petitioner and other co-accused infurtherance of their

common intention gain confidence of complainant. They induced

him to make investment of Rs.1,25,59,562/ which consists of

online investment as well as cash investment. Against that

investment they have paid only Rs. 22,75,000/ towards return.

Complainant repeatedly demanded papers of investment.

b. Thereafter they told him that loss is suffered by the company in

the investment and further induced to make investment with

them by selling his immovable property and valuables and

assured to cover his earlier loss also. Therefore, complainant fell

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prey to their inducement. They got executed from him sale deed

in respect of four shops in lieu of Rs. 64,00,000/ and one flat in

lieu of Rs. 40,00,000/. But did not pay the amount of

consideration. In those documents in recitals they vaguely stated

that amount of consideration already paid. They got sale deed

executed in to their name. Thus, they have cheated the

complainant to the tune of Rs.2,03,24,562/. Thereafter they filed

false application before PMC and MSEDCL for recording their

name to that property and on that application made false and

forged signatures of complainant. Therefore, complainant filed

complaint against them and accordingly this offence came to be

registered under section 406, 420, 464, 465, 468, 471,

182,199/200 r/w. 34, 120(b) and section 21 and 23 of Banning of

Unregulated Deposit Act. Hereto annexed and marked as

Exhibit- A is the copy of FIR/Chargesheet.

3. That, the Petitioner came to be arrested in the instant crime on

21/09/2021 and produced before Judicial Magistrate First Class

Court on 22/09/2021. Thereafter, the Respondent police realise

that JMFC has no jurisdiction. Hence, again the Petitioner was

produced before the Ld. Sessions Court on 23/09/2021.

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4. That the Applicant was arrested on 21.09.2021, but did not
produce him before this Hon’ble Court who have jurisdiction
till 23.09.2021 to remand the applicant under section 167, it is
pertinent to note that, the applicant was produce before the Ld.
JMFC Pune who doesn’t have jurisdiction to remand the
applicant, hence the custody of the applicant till 23.09.2021 is
illegal which amount to infringement of constitutional rights
granted under Article 21, 22(2) of the Constitution of India and
non-compliance of Section 57 Cr.P.C, hence detention of the
Applicant from 21.09.2021 to 23.09.2021 is illegal detention
which shows that the Respondent police is implicated him with
ulterior motive and malafide intention.

5. That, the right to produce before the court has been further
strengthened by its incorporation into the Constitution as a
fundamental right.  Article 22 (2) of the Constitution proves that
"Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of
twenty - four hours of such arrest excluding the time necessary
for the journey from the place of arrest.  to the court of the
magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
And in the present case the Ld. JMFC has no jurisdiction to
give custody of the Applicant hence custody of the Applicant is
illegal.

6. In a case of Khatri (II) v.  State of Bihar, the Supreme Court has
strongly urged upon the state and its police authorities to ensure
that this constitutional and legal requirement to produce an
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arrested person before a Judicial Magistrate within 24 hours of
the arrest be scrupulously observed.  This healthy provision
enables the magistrate to keep check over the police
investigation and it is necessary that the magistrates should try
to enforce this requirement and where it is found disobeyed,
heavily come upon the police.  If police officer fails to produce
an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention. 

7. In a case of Poovan v.  Sub-Inspector of Police it was said that

whenever a complaint is received by a magistrate that a person
is arrested within his jurisdiction but has not been produced
before him within 24 hours or a complaint has made to him that
a person is being detained within his  jurisdiction beyond 24
hours of his arrest, he can and should call upon the police
officer concerned;  to state whether the allegations are true and
if so;  on what and under whose custody;  he is being so
helped.  If the officer denies the arrest, the magistrate can make
an inquiry into the issue and pass appropriate orders.

8. It was held in the case of R.K. Naba Chandra Singh v Manipur

Administration by the Hon’ble High Court that if the police
officer considers that the investigation cannot be completed
within 24 hours, then it is his duty to produce the accused
forthwith before the Magistrate.

9. It was held in the case of Mohd. Suleman v King Emperor  that

the right to be brought before a magistrate within a period of
not more than 24 hours of arrest has been created with a view-
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a. To prevent arrest and detention for the purpose of extracting
confessions or as a means of compelling people to give
information.

b. To prevent police stations being used as though they were

prisons

c. To afford an early recourse to a judicial officer independent

of the police on all questions of bail or discharge.

10. It has been held in the case of Sharifbai v Abdul Razak that if

the Police officer fails to produce an arrested person before a
Magistrate within 24 hours of the arrest, he shall be held guilty
of wrongful detention.

11.The jurisdiction of the magistrate to entertain the remand and

bail also discuss the Hon’ble High Court of Bombay in the
matter of The Union of India Vs. Mr. Avinash Bhosale &
Others.

12.From the aforesaid facts and authority cited, it clears that, the
Respondent police failed to produce the applicant before the
appropriate court within 24 hours of his arrest, and the Ld.
JMFC has no jurisdiction to order remand of the applicant.
Hence, the custody of the applicant form 21.09.2021 to
23.09.2021 is amount to illegal detention. Therefore, the
applicant is deserves to be release of bail.

13.In Suaibo Ibow Casamma vs Union Of India, 1994 (1)

BomCR 64, This Hon’ble Court rightly observed that,
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19. In view of the above, it is clear that there is an
unexplained breach of the mandate of Article 21
and sub-clause (2) of Article 22 of the
Constitution. Arrest of the petitioner was complete
by about 5.30 a.m. on 2nd November, 1991.
Restraint on the petitioner was total from that
time. Restrictions on his movements were absolute
and from 5.30 a.m. on 2nd November, 1991 he
was entirely in custody of the customs officer. If
that be so, there is a clear breach of the provisions
of Clause (2) of Article 22 which requires that
every person who is arrested and detained in
custody shall be produced before the nearest
Magistrate within a period of 24 hours of his
arrest excluding the time necessary for the
journey from the place of his arrest to the Court
of Magistrate and that in no case such a person
shall be detained in custody beyond the said
period of 24 hours without the authority of a
Magistrate. There is no explanation whatever as
to why the petitioner was not produced before the
Magistrate in the city of Bombay before 5.30 a.m.
on 3rd November, 1991. Admittedly, he was
produced before the Magistrate much later i.e. to
say on 4th November, 1991 at 3 a.m. as contended
by petitioner at 11 a.m. on 4th November, 1991 as
contended by the respondents. In my view, the
detention of the petitioner beyond the permissible
limit of 24 hours is in clear violation of the
fundamental rights guaranteed under Articles 21
and 22 of the Constitution of India.

20. There is no doubt in my mind that the conduct

on the part of the Customs Officer is also in
breach of the mandatory provisions of Section 57
and Section 167 of the Code of Criminal
Procedure. However, as rightly pointed out by the
Supreme Court in Narcotics Control Bureau v.
Kishan Lal and Others one can perhaps take
shelter under the provisions of Section 37 of the
N.D.P.S. Act and contended the lapse on the part
of the investigating agency is immaterial unless
one comes to the conclusion at this stage that on
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account of this violation of Section 57 and Section
167 of the Code of Criminal Procedure there are
reasonable grounds for believing that the
petitioner is not guilty of an offence under the
N.D.P.S. Act.

22. Looking to the above facts and circumstances,

Shri Patwardhan has rightly impressed upon me
the necessary of making a few general
observations in the larger interests of upholding
the rule of law. Having regard to the settled
position in law and having regard to the scheme
of the provisions of Section 104 of the Customs
Act and Section 42 of the N.D.P.S. Act it is high
time that the investigating officers realise that the
moment the accused was apprehended and put
under complete control of the investigating officer
with absolute restrictions on his movements, his
arrest would be complete in law. Merely saying in
the remand application that the arrest was
recorded later, may be a day or two later, is
unlikely to convince any Court of law and reflects
very poorly on the investigating agency.
Recording of the seizure panchanama and
statements which are generally the two immediate
steps taken could not have taken more than say 12
hours. If that be so, nothing prevented the
investigation agency to produce the accused
before the Magistrate within the stipulated period
of 24 hours. This is not only the mandate of
Section 57 and Section 167 of the Code of
Criminal Procedure but this is the mandate of
Articles 21 and 22 of the Constitution of India. It
is unfortunate that the Customs Officials and
officials of the Narcotics Cell are indifferent to
these elementary but salutary requirements
regarding detention beyond 24 hours not being
permissible unless the accused was produced
before a Magistrate. I have my own doubts as to
what would have been the fate of this application
in the absence of the first contention being
upheld. Many a case under the N.D.P.S. Act
which would otherwise [end] in rejection of the
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application for bail by virtue of the provisions of
Section 37 of the N.D.P.S. Act, would have to end
in grant of bail, if there is a total violation of the
mandate contained in Article 21 and 22 of the
Constitution. It is, therefore, necessary for the
investigating agency, be it the provisions of
Articles 21 and 22 of the Constitution and ensure
that utmost care is taken to comply with the same.

14.In the recent case of Mr. Ugochukwu Solomon Ubabuko,

s/o.Late Mr. Francise Ubabuko, Mr. Ugochukwu Solomon
Ubabuko, s/o.Late Mr. Francise Ubabuko Vs. UOI,(NCB),
The Intelligence Officer, Narcotic Control Bureau, Criminal
Misc. Application (Bail) No. 585 of 2021 the Hon’ble Bombay
High Court at Goa was pleased to release the accused on bail on
the sole ground that the Accused didn't produce before a
magistrate within 24 hours of his detention.

15.that the applicant hereby undertakes that he will not tamper

and/or hamper with the evidence/witness even after granted
bail;

16.that the applicant is ready and willing to co-operate with the

investigating agency and to abide by all the reasonable terms
and conditions which this Hon’ble Court may impose while
granting bail and so also, attend the trial regularly;

17.that the applicant is residing at address mentioned in the cause

title. Hence, there is no possibility of absconding and/or running
away from the course of justice;
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18.that the applicant is ready to furnish surety to the satisfaction of
this Hon’ble Court at the time of granting bail by this Hon’ble
Court

19.The applicant craves leave of this Hon’ble Court to add, alter,

amend, delete and/or rescind any of the averments and/or
submissions mentioned hereinabove, with the leave of this
Hon’ble Court.

Under the facts and circumstances, the Applicants, therefore, most

humbly prays as under:

a. that this Hon’ble Court may be pleased to release the

Applicants on bail in connection with CR. No. 483 of 2021
with Yerwada Police Station, Pune on such terms and
conditions as this Hon’ble Court may deem fit and proper;

b. that this Hon’ble Court may be pleased to dispense with the

verification of the applicants since they are in custody;

c. any other further order and/or direction be given as the

nature and circumstances of the case may require;

Mumbai;

This day of December, 2021.

Subhash Hulyalkar

Advocate for the Applicant.