'No police custody post jud custody'

Bengaluru, NT Bureau: The High Court of Karnataka has said that once an accused is taken into ‘judicial custody’ the police cannot claim ‘police custody’ again. Police custody has to be taken in the first 15 days of the arrest of a person, it said.

Justice M Nagaprasannan in his judgement on a petition filed by one Emmanuel Michael recorded that the two days he spent in police custody five months after his arrest was “illegal custody”.

Therefore statements collected during those days will be considered “statements in illegal custody”, the HC said.

However, the HC said that it did not have powers to eschew those statements made in illegal custody. It was for the trial court to decide on what to do with them.

The Narcotic Control Bureau had seized the narcotic substance MDMA from a post office in Bengaluru. It led to the arrest of a lady in December 2020. The investigation led to Emmanuel Michael who was also arrested on December 18, 2020.

He was taken to police custody till December 23, 2020. On December 23 he was remanded to judicial custody. On May 20, 2021 police sought the custody of Emmanuel Michael for three days.

The trial court granted it. Between 21-05-2021 and 23- 05-2021 he was in police custody who recorded his statements. Michael approached the HC challenging this second police custody.

Citing a Supreme Court judgement, the HC said that “I have no hesitation to hold that the second stint of Police custody, in the same case, of the petitioner between 21-05-2021 and 23- 05-2021 is illegal, and the statements recorded during the said period would become statements recorded during the course of illegal custody.”

Citing the Anupam J Kulkarni case of the Apex Court the HC said that “Police custody that has been granted after completion of 15 days of Police custody was illegal which would mean the second stint of Police custody was illegal. It has to be in the first 15 days of arrest of the accused.”

The second question the HC answered was what happens to the statements recorded in illegal custody. “The issue now is, as to what happens to such statements recorded during illegal custody, so to say “what happens to the fruit of a poisonous tree”.

The tree is now declared to be poisonous as the second stint of Police custody is declared to be illegal,” the HC noted.

Citing the State Vs NMT Joy Immaculate case, the HC said that “This Court under Section 482 of the CrPC would not venture into declaring that the statement recorded during the second stint of Police custody be eschewed in its entirety which is akin to statements of an illegal act. No doubt it is illegal, but exercising jurisdiction to hold it as illegal and completely eschewing it, is not the power that is available at the hands of this Court.”

The HC said it was for the trial court to decide on what to do with the statements made under illegal custody.

“The fruit of a poisonous tree should be tasted and tested only before the concerned Court. Therefore, the issue is neither answered in favour of the petitioner, nor in favour of the respondent, but the issue is to be taken note of and answered by the concerned Court,” the HC said disposing the petition. (WP 17961/2021)