The Karnataka High Court has held that an accused cannot be subjected to police custody for a second time in the same case after having already spent a considerable duration in judicial custody.

The Bench of Justice M Nagaprasanna observed, "...it is now a settled principle of law that second stint of Police custody for interrogation, in the same case, long after the accused being in judicial custody is unavailable."

"Once the accused is remanded to judicial custody seeking Police custody repeatedly on the ground that total 15 days custody is not yet over is a right that is unavailable to the prosecution," the Bench further noted.

In this case, the Petitioner was facing charges under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) and had been placed in judicial custody for an extended period.

The Court declared the special court's decision to grant police custody to the petitioner six months after his initial arrest and remand to judicial custody as illegal. During this second stint of police custody, which took place between 21-05-2021 and 23-05-2021, the police recorded statements from the petitioner related to the case. The High Court ruled that these statements were obtained unlawfully during the illegal custody period.

Senior Advocate Hashmath Pasha appeared for the Petitioner and CGC Narasimhan S for the Respondent.

According to the prosecution, the petitioner was arrested following the seizure of 610 grams of MDMA from the Foreign Post Office in Bengaluru's Chamarajpet in December 2020. Initially, his statement was recorded, and he was sent to police custody for five days. Subsequently, he was remanded to judicial custody. During the investigation, another accused (Accused No. 3) was arrested, who claimed to be a consumer of the drugs supplied by the petitioner on more than 100 occasions. In May 2021, the Narcotic Control Bureau filed an application seeking police custody of the petitioner for three more days, which was granted.

The petitioner challenged this second police custody and the statements obtained during that period, seeking their exclusion from the case. The High Court clarified that under the law, police custody can only be sought and granted for the first 15 days after the accused's initial arrest. Once the accused is remanded to judicial custody, the prosecution does not have the right to repeatedly seek police custody based on the argument that the total 15-day custody period is not yet exhausted.

Regarding the petitioner's plea to exclude the statements recorded during the illegal custody, the Court referred to the Supreme Court's ruling in State v. N M T Joy Immaculate (2004). It stated that the revisional court or courts under Section 482 of the Code of Criminal Procedure should not exclude any evidence. Instead, it is the responsibility of the accused to present these points before the concerned court, which will then take note of the fact that the statements were obtained during an illegal custody period.

The High Court emphasized that it does not possess the authority to entirely exclude these statements, despite acknowledging their illegal nature. However, the concerned court is free to assess the veracity of the statements recorded during the said period and proceed in accordance with the law.

Accordingly, the Court partly allowed the Writ Petition.

Cause Title: MR. Emmanuel Michael v. Union of India

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Karnataka High CourtJustice M NagaprasannaNDPS Case

Suchita Shukla