T.N.R. Tirumalpad, J.C.
1. The petitioner Sehhadat Khan was arrested on 31-1-63 at about 7-30 A.M. by the S. I. of Police of the Security Unit at the Agartala Airport suspecting him to be a foreigner without a Passport and Visa. Then he was searched and Rupees 1,431 in cash and 4 gold Tabijes weighing 7 tolas and odd were found on his person. He appears to have given different addresses and also mentioned different persons as the owners of the gold ornaments. Thus as the Police Officer found that the petitioner could not give a satisfactory account of the articles and suspected them to be stolen, he seized the articles. There were also various other articles like wearing apparel, fountain pen, knife, plane ticket and other papers as seen in the seizure list. The petitioner was produced with the seized articles before the O/C Kotwali Police station with a report that the petitioner was detected as a stranger and was strongly suspected to be connected with a cognizable offence.
At the Police station, he was re-arrested by the S. I. under Section 54 Criminal Procedure Code. He was produced before the S. D. M., Agartala on 1-2-63 and the Police prayed for his remand pen-fling investigation, A bail, application was moved for him. But the magistrate remanded him to custody and disallowed ball as the matter was under Investigation and asked for a report from the Police by 6-2-63. On 6-2-63, ball was again moved for the petitioner and it was found that the Police Had not submitted any report as directed by the magistrate. The Police were then .asked to submit the report by 15-2-63 and the petitioner was further remanded till then. Then he moved the Sessions Court on 15-2-63 for bail. The learned Sessions Judge, however, dismissed the bail application on 16-2-1933 and in doing so stated that there should be; a proper investigation regarding the question of the nationality of the petitioner, who had made contradictory statements to evoke suspicion as regards not only his nationality but also his possession of the gold Tabijes and hence, the prayer for ball cannot be considered at that stage. Hence, the petitioner has come up to this Court for ball.
2. It may be mentioned that on 15-2-63 the Police did not file the report called for by the magistrate and still the magistrate has further remanded the petitioner to jail custody and even till this date the Police have not filed the report before the Magistrate. To my question to the learned Government Advocate whether any evidence has Seen collected so far to raise a suspicion that the petitioner may have committed an offence, he re. plied that as the petitioner mentioned that he belonged to Karimganj in Assam, letters have been written to the Police at Karimganj for information but that no reply has been received so far from Karimganj in spite of reminders. Thus the petitioner who was arrested under Section 54 Cr. P. C. on suspicion continues in jail custody, even though no attempt has been made by the Police so far in the course of investigation to secure any evidence against him excepting writing letters to the Kariiu, ganj Police.
3. I am afraid that the learned Magistrate has not acted in accordance with the provisions of Sections 167 and 344 Cr. P. C. in ordering the remand of the petitioner. Section 167 provides that where there are grounds for believing that the accusation or information against an arrested person is Well-founded, the Police officer concerned shall forward the accused to the nearest Magistrate along with a copy of the entries in the diary relating to the case and the magistrate may authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days on the whole. But this does not permit the magistrate merely as a matter of routine to remand the arrested person to custody. Such routine remands must be deprecated. I have seen such routine remands In many Instances and I have given directions to the magistrates to satisfy themselves that a remand is really necessary before they commit the arrested person to jail custody. It is to satisfy themselves on this matter that a copy of the entries relating to the case; is sent to the Magistrate. Particularly in the case of a person arrested on mere suspicion under Section 64, Cr. P. C., the magistrate has to Vie watchful, as the power to arrest without warrant on suspicion under Section 54 Cr. P. C. is liable to be abused. In the present case, the suspicion of the S. I. (who arrested) that the petitioner was concerned in a cognisable offence arose after the arrest and after the seizure of the gold ornaments from his person. This is clear from his report to the O. C. perhaps that was why there was a second arrest under Section 54 in the Police station.
4. However, there may not be any serious objection to the first remand on 1-2-03. But the Magistrate directed the Police to submit a report by 6-2-63 evidently as he was not satisfied regarding the necessity for a long remand. When the Police disobeyed the direction of the magistrate and did not submit any report and did not give any reasons for their failure to submit the report, there was no reason for further remand, and the Magistrate should never have made an order for the further detention of the arrested person. The further order of detention passed on 6-2-63 was, therefore, clearly wrong. It is such orders by a Magistrate that make the Police disregard the directions of the Court and make them feel that they can take their own time for Investigation.
5. When again, on 15-2-63, no report was filed by the Police to satisfy the Magistrate that further remand was necessary, the Magistrate should not have ordered the further detention of the petitioner. It was brought to the notice of the Sessions Judge that even on 15-2-63 no report was filed. But still the learned Sessions Judge refused to grant bail and merely remarked that it is not difficult for the Police to complete investigation with regard to the citizenship of the petitioner at an early date and that they should complete the investigation expeditiously so that the petitioner may not be detained in custody unnecessarily if there was 110 case against him. The learned Sessions Judge failed to see that no question of citizenship was involved and that the petitioner was not arrested on the ground that he was a Pakistan national and had entered India without a Passport. It is clear from the documents seized from the petitioner that he was in possession of an Air Ticket from Calcutta to Agartala for travel on 31-1-63 and that he had just reached Agartala by Plane that morning when he was arrested. It is also seen that he had made purchase of cloth at Calcutta on 30-1-63. Thus he was not at the time of arrest seen entering India from outside without a Passport, but had travelled from Calcutta to Agartala. His arrest was made at the Police, station on suspicion of his having been concerned in a cognizable offence connected with the ornaments seized from him.
6. When a person is thus arrested on suspicion, it is the duty of the Police to carry out prompt investigation without unnecessary delay as provided under Section 173 Cr. P. C. and collect evidence to satisfy the Court that there is sufficient evidence to raise a suspicion that the arrested man may have committed an offence. After all, cash and ornaments are not uncommon things to be seen in a passenger who has come by plane and the possession of the same by itself need not cause suspicion of the commission of an offence. The arrested man had given his address at Karimganj and it was easy for the Police to verify his statements.
7. Under Section 167 Cr. P. C. no magistrate has Sot the power to order the detention of an accused in custody for a term exceeding 15 days in the whole. This period expired on 15-2-63. Thus on the date when the bail petition was moved before the Sessions Judge, there could be no further detention under Section 167 Cr. P. C. Any further order of remand to custody can be made by a Magistrate only under Section 344 Cr. P. C. It was pointed out for the petitioner that an order of remand can be made under Section 344 Cr. P. C. only after the Magistrate had taken cognizance of the offence under Section 190 Cr. P. C. and that in this case where no such cognizance had been taken, the Magistrate cannot detain the petitioner beyond 15-2-63. The decision of the Orissa High Court, Artatran Mahasuara v. State of Orissa AIR 1956 Orissa 129 was also relied upon in that connection.
8. It is not however, necessary to decide this question finally at present. It is enough to say that any further remand under Section 344 Cr. P. C. can be made only if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and that it appears likely that further evidence may be obtained by a remand. Thus In order to remand an accused under Section 344 Cr. P. C. the Magistrate must satisfy himself that sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence. In this case, the Police who were called upon to submit a report on that matter failed to obey the direction of the magistrate and did not submit any report to show that sufficient evidence was obtained to raise a suspicion that the accused may have committed an offence. We have, therefore, to take it that the Police have not been able to obtain sufficient evidence. In fact, the learned Government Advocate admitted that no further evidence has been collected till now. Thus without any evidence being collected and without any attempt being made to collect such evidence, the petitioner has simply boon kept in jail on suspicion of his having been concerned In a cognizable offence.
As pointed out by the Sessions Judge, Karimganj is not far away and it would not have been difficult for the Police to complete the investigation by this time. If a Police officer wanted to collect information from Karimganj, he could reach Karimganj by Air and Train within a few hours from Agartala. Instead of that the local Police have been merely corresponding with the Karimganj Police and it was admitted that so far no reply has been received from the Karimganj Police. Such slack investigation in spite of the. order of the magistrate to submit Police report by 6-2-63 has to be deprecated. No arrested person should be allowed to rot in jail when the Police have such little regard for the liberty of the citizen and when they disobey the orders of the Court so flagrantly without giving any proper explanation why there has been practically no investigation in this case between 31-1-63 and this date. This is a fit case where this Court should interfere under Section 49s Cr. P. C. and direct that the petitioner should riot be remanded any further to custody and that he should be granted bail. It Is accordingly ordered that the petitioner will be released on his personal bond for Rs. 2000/- supported by two sureties each for a like amount to the satisfaction of the S. D. M., Sadar.
9. The petitioner has made a request for the return of the articles including the cash all In Indian currency and the gold Tabijes seized from him. That is a matter to be dealt with by the Magistrate under Section 523 Cr. P. C. It goes without saying that if the Police continue to disobey the direction of the magistrate and fail to submit report to him, the magistrate will have to deliver the property to the person entitled to the possession thereof, under Section 523. At this stage, when the matter is still under investigation, this Court cannot direct the return of the seized articles to the petitioner.