Kerala High Court
State Of Kerala vs M N Narayanadas @ Satheesh on 30 June, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.5512/25
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 30TH DAY OF JUNE 2025 / 9TH ASHADHA, 1947
CRL.MC NO. 5512 OF 2025
CRIME NO.5/2023 OF Chalakkudy Excise Range Office,
Thrissur
AGAINST THE ORDER/JUDGMENT DATED 20.06.2025 IN CRMP
NO.3034 OF 2025 OF DISTRICT COURT & SESSIONS COURT/RENT
CONTROL APPELLATE AUTHORITY, THRISSUR
PETITIONER:
STATE OF KERALA,
REPRESENTED BY THE DEPUTY POLICE SUPERINTENDENT,
KODUNGALLUR THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
PUBLIC PROSECUTOR
DIRECTOR GENERAL OF PROSECUTION
P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P.
SHRI.SAJJU.S., SENIOR G.P.
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RESPONDENT:
M N NARAYANADAS @ SATHEESH,
AGED 55 YEARS
S/O. NARAYANEEYAM VEETTIL NARAYANA MENON,DARSANAM
ROAD, EROOR DESOM, TRIPUNITHURA, NADAMA VILLAGE,
ERNAKULAM DISTRICT (RP 3390, SPECIAL SUB JAIL,
IRINJALAKKUDA, PIN - 682301
BY ADVS.
SRI.SALIM V.S.
SMT.A.M.FOUSI
SHRI.A.B.AJIN
OTHER PRESENT:
SRI. P. NARAYANAN, SPL. PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 26.06.2025, THE COURT ON 30.06.2025 PASSED THE
FOLLOWING:
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V.G.ARUN, J
= = = = = = = = = = = = = = = = =
Crl.M.C.No.5512 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 30th day of June, 2025
ORDER
The State of Kerala is before this Court aggrieved by
rejection of its application seeking police custody of the 1 st
accused in Crime No.5 of 2023 of Excise Range Office,
Chalakudy. The essential facts are as under;
Based on the information given by the 1 st accused, the
Excise officials recovered LSD Stamps from the scooter and
vanity bag of a lady named Sheela Sunny on 27.02.2023.
During the course of investigation in that crime, the recovered
stamps were subjected to chemical analysis. Thereupon, it was
revealed that the stamps did not contain any narcotic drug or
psychotropic substance. From subsequent investigation it came
to light that Sheela Sunny was framed in the crime based on a
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conspiracy between the 1st and 2nd accused. Thereupon, the
offences for which the crime was originally registered was
altered to Section 58(2), 28, 29, 22(c) and 60(3) of the NDPS
Act and Sections 120B, 195 and 116 r/w Section 34 of IPC.
Subsequently, the respondent was arrested on 29.04.2025 and
remanded to judicial custody. While so, he was given to police
custody for four days. Later, Liviya Jose, the 2 nd accused, was
arrested from Mumbai on 14.06.2025 and on production before
the jurisdictional Magistrate, remanded to judicial custody.
Thereafter, the prosecution filed Annexure II petition seeking
police custody of both the accused in order to conduct joint
interrogation to bring out certain vital facts. By the impugned
order, the learned Magistrate granted police custody of the 2 nd
accused and declined the prayer for custody of the 1 st accused,
based on the reasoning that police custody can be given only
during the initial 15 days of remand.
2. Adv.P.Narayanan, the learned Public Prosecutor
contended that the offences alleged against the respondent are
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under Sections 22(c) read with 29, 58(2) and 28 of the NDPS
Act and Section 22(c) being punishable with more than 10
years imprisonment, the maximum period of custody can be up
to 90 days. According to the Public Prosecutor, the court
below grossly erred in holding that police custody of the
accused can be granted only during the initial 15 days of
remand. It is submitted that even though such a view was
expressed by the Supreme Court in Central Bureau of
Investigation, Special Investigation Cell-I, New Delhi v.
Anupam J. Kulkarni [(1992) 3 SCC 141] the legal position
stands altered by the decision in V.Senthil Balaji v. State
represented by Deputy Director and Others [(2024) 3 SCC 51].
It is the contention of the learned counsel that, when faced with
divergent judgments of the Supreme Court, the High Court
should follow the later judgment. In support of this argument,
reliance is placed on the Division Bench decision of this Court in
Prasanna v. State of Kerala [2025 (3) KLT 299].
3. On the other hand Adv.Salim V.S., the learned counsel
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for the respondent argued that, the decision in V.Senthil
Balaji (supra) is per incuriam, being contrary to the earlier
view expressed by the Apex Court in Anupam J. Kulkarni
(supra) by a co-equal Bench. Relying on the decision in
National Insurance Company Ltd. v. Pranay Sethi and
Others [(2017) 16 SCC 680], it is contended that earlier
decision of the co-equal Bench binds the Bench of same
strength and if the previously pronounced judgment is not
followed, the subsequent judgment will be per incuriam.
Support for this proposition is also sought to be drawn by
relying on the decision in Rajnish Kumar Rai v. Union of
India and Others [2023 LiveLaw (SC) 842]. It is submitted
that in V.Senthil Balaji, the Apex Court referred the question
whether the 15 days’ period of custody in favour of the police
under Section 167(2) Cr.P.C. can only be within the first 15
days of remand or can span over the entire period of
investigation, viz; 60 or 90 days, as the case may be, to a larger
Bench for an authoritative pronouncement on the issue.
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Therefore, until the reference is answered, the law to be
followed is the one declared by the Apex Court in Anupam J.
Kulkarni.
4. The thrust of the contentions being with respect to the
interpretation of Section 167(2) of Cr.P.C., the said provision is
extracted below;
“167. Procedure when investigation cannot be completed
in twenty-four hours;-
xxx xxx xxx xxx xxx xxx xxx
(2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has not
jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the whole; and
if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the
accused to be forwarded to a Magistrate having such jurisdiction :
Provided that –
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the police,
beyond the period of fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this paragraph
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for a total period exceeding, –
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days, or
sixty days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail, and
every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter XXXIII
for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused
in custody of the police under this section unless the accused is
produced before him in person for the first time and subsequently
every time till the accused remains in the custody of the police,
but the Magistrate may extend further detention in judicial
custody on production of the accused either in person or through
the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.”
5. It is true that in Anupam J. Kulkarni, the Supreme
Court held that after the expiry of the first period of 15 days,
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further remand during the period of investigating can only be in
judicial custody. Being contextually relevant paragraph 8 of
that judgment is extracted below;
“8. Having regard to the words “in such custody as such
Magistrate thinks fit for a term not exceeding fifteen days in the
whole” occurring in sub-section (2) of Section 167 now the
question is whether it can be construed that the police custody, if
any, should be within this period of first fifteen days and not later
or alternatively in a case if such remand had not been obtained or
the number of days of police custody in the first fifteen days are
less whether the police can ask subsequently for police custody
for full period of fifteen days not availed earlier or for the
remaining days during the rest of the periods of ninety days or
sixty days covered by the proviso. The decisions mentioned above
do not deal with this question precisely except the judgment of
the Delhi High Court in Dharam Pal case [1982 Cri LJ 1103:
(1982) 21 DLT 50: 1982 Chand Cri (Del) 114]. Taking the plain
language into consideration particularly the words “otherwise than
in the custody of the police beyond the period of fifteen days” in
the proviso it has to be held that the custody after the expiry of
the first fifteen days can only be judicial custody during the rest
of the periods of ninety days or sixty days and that police custody
if found necessary can be ordered only during the first period of
fifteen days. To this extent the view taken in Dharam Pal case
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[1982 Cri LJ 1103: (1982) 21 DLT 50: 1982 Chand Cri (Del) 114]
is correct.”
The above dictum held the field till it was overturned by
the decision in V.Senthil Balaji. Therein, the appellant, a
sitting Minister in the Tamil Nadu Cabinet was arrested by the
Enforcement Directorate and on the request of the
investigating agency, he was given to police custody during the
original remand period of 15 days. The appellant fell sick
immediately after his arrest and had to be hospitalised for a
long period. Faced with such a situation, the investigating
officer filed another custody application in a Habeas Corpus
writ petition filed by the Minister’s wife before the Madras
High Court. The Judges in the Division Bench rendered
divergent judgments, the first Judge allowed the Habeas
Corpus writ petition holding that the Enforcement Directorate
is not vested with the power to seek police custody under the
Prevention of Money-Laundering Act, 2002 and the second
Judge dismissed the writ petition and held that the period of
hospitalisation shall be deducted from the initial period of 15
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days under Section 167(2) of the Code of Criminal Procedure.
The appellant placed reliance on the decision in Anupam J.
Kulkarni to contend that under Section 167(2) of the Code,
police custody can be granted only during the initial remand
period and no court can extend that period. The Apex Court,
after careful scrutiny of the expressions ‘time to time’, ‘such
custody’ and ‘in the whole’ in Section 167(2), differed from the
view expressed in Anupam J. Kulkarni and answered the issue
as under;
“Does Section 167(2) of the Code of Criminal Procedure, 1973
restrict a police custody only to the first 15 days of remand?
85. We have given our interpretation on the scope and ambit of
Section 167(2)CrPC, 1973. With due respect, we are unable to concur
with the views expressed in Anupam J. Kulkarni [CBI v. Anupam J.
Kulkarni, (1992) 3 SCC 141 : 1992 SCC (Cri) 554] to the effect that a
police custody shall only be within the first 15 days of remand.
Nowhere under Section 167(2)CrPC, 1973 such a stipulation is found
either directly or indirectly. The words such as ” time to time”, “such
custody”, and “in the whole” mentioned under Section 167(2)CrPC,
1973 have not been properly taken note of and interpreted. What is
required is a simple and natural interpretation when there is no
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semblance of ambiguity.
86. The intendment behind the proviso has also not been
construed. Section 167(2)CrPC, 1973, as stated, does a fine
balancing act between the liberty of an individual and a proper
investigation. Perhaps, this Court was keeping in mind the earlier
CrPC, 1898 which restricts the period of investigation to 15 days
alone. Once the period is given as 60 days or 90 days as the case
may be, to an investigating agency, in tune with the proviso, Section
167(2)CrPC, 1973 by even normal interpretation facilitates a police
custody spanning over the said period, but ” whole” being for 15 days.
It appears to us that a clear provision has not been construed
correctly, while adding certain words.
87. The decision in Chaganti Satyanarayana v. State of A.P.
[Chaganti Satyanarayana v. State of A.P., (1986) 3 SCC 141 : 1986
SCC (Cri) 321] has also been misconstrued. Though the facts are a
bit different in the said decision, this Court has rightly understood
sub-section (2) of Section 167CrPC, 1973 : (SCC pp. 148-149, para
16)
“16. As sub-section (2) of Section 167 as well as proviso (1) of
sub-section (2) of Section 309 relate to the powers of remand of a
Magistrate, though under different situations, the two provisions call
for a harmonious reading insofar as the periods of remand are
concerned. It would, therefore, follow that the words “15 days in the
whole” occurring in sub-section (2) of Section 167 would be
tantamount to a period of “15 days at a time” but subject to the
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condition that if the accused is to be remanded to police custody the
remand should be for such period as is commensurate with the
requirements of a case with provision for further extensions for
restricted periods, if need be, but in no case should the total period
of remand to police custody exceed 15 days. Where an accused is
placed in police custody for the maximum period of 15 days allowed
under law either pursuant to a single order of remand or to more
than one order, when the remand is restricted on each occasion to a
lesser number of days, further detention of the accused, if
warranted, has to be necessarily to judicial custody and not
otherwise. The legislature having provided for an accused being
placed under police custody under orders of remand for effective
investigation of cases has at the same time taken care to see that
the interests of the accused are not jeopardised by his being placed
under police custody beyond a total period of 15 days, under any
circumstances, irrespective of the gravity of the offence or the
serious nature of the case.”
The aforesaid passage has been taken note of in Anupam J. Kulkarni
[CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 : 1992 SCC (Cri) 554]
to mean that an investigation with custody is permissible only within
the first 15 days of remand.
88.Even assuming that the rationale behind Anupam J. Kulkarni
[CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 : 1992 SCC (Cri) 554]
is correct, the legal maxim actus curiae neminem gravabit would
certainly apply. This aspect has not been taken note of in the said
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judgment, followed by the others. The larger Bench of this Court in
Budh Singh v. State of Punjab [Budh Singh v. State of Punjab,
(2000) 9 SCC 266] , mainly gave its imprimatur to the findings
rendered in Anupam J. Kulkarni [CBI v. Anupam J. Kulkarni, (1992)
3 SCC 141 : 1992 SCC (Cri) 554] . Allowing the said interpretation
which in our respectful view is contrary to the very mandate of
Section 167(2)CrPC, 1973 would cause serious prejudice to the
investigation. While agreeing with the views expressed by this Court
in VikasMishra [CBI v. Vikas Mishra, (2023) 6 SCC 49 : (2023) 2 SCC
(Cri) 667] which actually dealt with the issue of counting the days,
we are inclined to refer the larger issue of the actual import of
Section 167(2)CrPC, 1973 as to whether the 15 days period of
custody in favour of the police should be only within the first 15
days of remand or spanning over the entire period of investigation
— 60 or 90 days, as the case may be, as a whole. This issue needs
to be put to rest as a legal proposition on an authoritative
pronouncement by a larger Bench, though it does not alter our
consideration herein in the facts and circumstances arising in this
case. Notwithstanding the same, we proceed further to discuss and
conclude to decide these petitions since a conclusion can be
reached in the facts of this case guided by the law as it exists and
noticed herein.”
Based on the discussion above, the Supreme Court
unequivocally declared that the maximum period of 15 days of
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police custody is meant to be applied to the entire period of
investigation, viz, 60 or 90 days, as a whole.
6. Although learned counsel for the respondent contended
that the subsequent judgment is per incuriam, having been
rendered contrary to the findings in an earlier judgment, in the
case at hand, the second judgment was rendered after
considering the findings in the earlier judgment and stating the
reasons as to why those findings are incorrect. Yet another
pertinent aspect is that in Pranay Sethi (supra), the
subsequent judgment was held per incuriam as it was rendered
without noticing the earlier judgment, as evident from
Paragraph 28 of that judgment, extracted below for easy
reference;
“28. In this context, we may also refer to Sundeep Kumar Bafna v.
State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra,
(2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays down
the principle that discipline demanded by a precedent or the
disqualification or diminution of a decision on the application of the per
incuriam rule is of great importance, since without it, certainty of law,
consistency of rulings and comity of courts would become a costly
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casualty. A decision or judgment can be per incuriam any provision in a
statute, rule or regulation, which was not brought to the notice of the
court. A decision or judgment can also be per incuriam if it is not
possible to reconcile its ratio with that of a previously pronounced
judgment of a co-equal or larger Bench. There can be no scintilla of
doubt that an earlier decision of co-equal Bench binds the Bench of
same strength. Though the judgment in Rajesh case [Rajesh v. Rajbir
Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri)
817 : (2014) 1 SCC (L&S) 149] was delivered on a later date, it had not
apprised itself of the law stated in Reshma Kumari [Reshma Kumari v.
Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3
SCC (Cri) 826] but had been guided by Santosh Devi [Santosh Devi v.
National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726
: (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] . We have no
hesitation that it is not a binding precedent on the co-equal Bench.
7. In following the later judgment in V.Senthil Balaji, I
am guided by the following findings of our Division Bench in
Prasanna (supra);
“22.What should a High Court do when faced with two judgments
of the Supreme Court which cannot be apparently reconciled with
respect to its ratios is a vexed question. One line of decision is that if
there is a conflict in two Supreme Court decisions, the decision which is
later in point of time would be binding on the High Courts. The second
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line of decisions is that in case there is a conflict between the judgments
of the Supreme Court consisting of equal authorities, incidents of time is
not a relevant factor and the High Court must follow the judgment which
appears it to lay down elaborately and accurately. A Full Bench of the
Punjab and Haryana High Court in Indo Swiss Time Limited v.
Umrao, 1981 SCC OnLine P&H 45 followed the second line of decisions.
The same is the view taken by the Bombay High Court also in Special
Land Acquisition Officer (I) v. Municipal Corporation of Greater
Bombay, 1987 SCC OnLine Bom 177. According to us, the decision
in Joseph is not only the decision rendered at a later point of time, but
also one which identifies the core of the issues arising for consideration
in matters of this nature and answers the same elaborately and
accurately.”
8.The contention that in V.Senthil Balaji, the Apex Court
ultimately referred the question to a larger Bench for
authoritative pronouncement and hence, the decision cannot be
treated as a binding precedent is also liable to be rejected,
since the reference was made after declaring the law, as
evident from the following observation in paragraph 88;
“Notwithstanding the same, we proceed further to discuss and conclude to
decide these petitions since a conclusion can be reached in the facts of this
case guided by the law as it exists and noticed herein.
(underline supplied)
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For the aforementioned reasons, the Crl.M.C is allowed
and Annexure III order is set aside to the extent it denies
police custody of the 1st accused. The court below shall issue
production warrant to produce the respondent and after
complying with necessary formalities, give custody of the
respondent to the investigating officer in Crime No.5 of 2023 of
Chalakudy Excise Range, corresponding with the days on which
custody of the second accused is granted. The needful in this
regard shall be done within 5 days of receipt of a copy of this
order.
sd/-
V.G.ARUN, JUDGE
sj
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APPENDIX OF CRL.MC 5512/2025
PETITIONER ANNEXURES
Annexure I COPY OF THE CRIME AND OCCURRENCE REPORT
IN NDPS CRIME NO. 5/2023 OF EXCISE
RANGE OFFICE, CHALAKKUDY
Annexure II COPY OF THE PETITION AND AFFIDAVIT IN
CRL. MP 3034/2025 (CRIME NO. 5/2023 OF
EXCISE RANGE OFFICE, CHALAKKUDY ) FILED
BEFORE THE SESSIONS COURT, THRISSUR
Annexure III TRUE COPY OF THE ORDER IN CRL. MP
3034/2025 OF THE SESSIONS COURT,
THRISSUR DATED 20.06.2025