Sunday, 30 August 2020

When should court release accused on default bail in case under NDPS Act?

In the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorize detention for a period up to one year, the law as it stands mandates that the same shall be subject to the following, being complied in letter and spirit. The legal position can be thus summarized as follows: -

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused become entitled to admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 10152 of 2019

Decided On: 20.08.2020

 Iswar Tiwari   Vs.  State of Odisha

Hon'ble Judges/Coram:
S.K. Panigrahi, J.

Citation: MANU/OR/0171/2020


1. The present application seeking bail under Section 439 of the Code of Criminal Procedure, 1973 has been preferred in connection to an FIR against the present Petitioner and other accused persons which was registered as Jeypore Sadar P.S. Case No. 72 dated 15-04-2019, U/s. 20(b)(ii) C/29 of the N.D.P.S., Act, corresponding to T.R. Case No. 19 of 2019 pending in the file of the learned Dist. & Sessions Judge-cum-Special Judge, Koraput at Jeypore.

2. The brief facts of the case, shorn of unnecessary details, is that while the informant along with other staff were performing their patrolling duties, they noticed that one full body truck bearing Regd. No. UP-78-DJ-0111 carrying five persons including the driver were being escorted by one Toyota Innova vehicle boarded by one person i.e. the driver of the Car. They were allegedly coming from Jeypore side and over took the Bolero Vehicle of the Informant at Teliguda chhak, at a very high speed making them suspicious. Thereafter, the informant allegedly chased the said vehicles and detained the accused. On search, the informant found plastic bottles and polythene bags which were loaded inside and also emitting some pungent smell. Thereafter, upon further search, the informant and his staff discovered eleven polythene packets containing 270kg 200gms of Ganja from the said truck.

3. The Petitioner along with other accused persons were forwarded to the court of Learned Sessions Judge-cum-Special Judge, Koraput at Jeypore on 15.04.2019. Thereafter, one S.I. Sima Pradhan of Jeypore Sadar Police Station was directed to commence investigation. During investigation, the case was posted on 4.10.2019 before the Ld. Sessions Judge-cum-Special Judge, Koraput at Jeypore awaiting receipt of the chargesheet. On the same day, the I.O. has submitted up-to-date case diary, statement U/S. 161 of Cr.PC and other connected papers. He also moved an application to extend the stipulated time for submission of chargesheet for a further period of 60 days on the ground that although the major part of the investigation had been completed, but the ownership particulars of the seized vehicle were yet to be received from the RTO, Koraput. On that ground, an application for extension of 60 days time to submit the charge sheet was sought by the prosecution, after an elapse of the statutory period of 180 days i.e. the stipulated period was going to expire on 12.10.2019.

4. The learned Sessions Judge-Cum-Special Judge, Koraput at Jeypore, without issuing Notice to the Accused persons, heard the submissions of the Ld. Special Public Prosecutor and proceeded ex-parte to extend the time for submission of chargesheet as envisaged under Section 36-A (4) of the NDPS Act. Consequently, an extended time of 30 days was granted with effect from 13.10.2019.

5. The Ld. Counsel for the Petitioner Shri Jyotirmaya Sahoo contended that since the accused has been in custody since 15.4.2019, Ld. Court below has erred in proceeding to decide the application moved by the prosecution in terms of Section 36-A (4) of the NDPS Act without issuing notice to the accused. The learned Court below passed an ex-parte order which is violation of Section 36-A(4) of the N.D.P.S. Act. Sub-section 4 of Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 mandates that an opportunity of hearing must be given to the accused before granting extension for a further period of 60 days for completing the investigation. He, thus, contends that non-grant of an opportunity of hearing to the Petitioner has prejudiced him seriously. To buttress his submission, he relied on Lambodar Bag Vs. State of Orissa MANU/OR/0312/2018 : (2018) 71 OCR-31 and Hussainara Khatoon Vs. Home Secretary MANU/SC/0122/1979 : A.I.R. 1979 S.C. 1377 which holds that at the stage of granting extension of time to the prosecution for submission of Charge-sheet is mandatorily required under the NDPS Act to serve notice to the accused.

6. Shri Tapas Kumar Praharaj, learned Standing Counsel for the State, has succinctly submitted that the Petitioner is a resident outside the state hence there are higher chances of fleeing from justice. He also vehemently contended that considering the nature and gravity of the offence, the Petitioner ought not be released on bail.

7. Heard learned Counsel for the parties and perused the documents. For better appreciation of the submission of the Petitioner, the relevant law on the subject warrants a proper evaluation. In the case of Rajnikant Jivanlal v. Intelligence Officer, Narcotic Control Bureau MANU/SC/0440/1989 : (1989) 3 SCC 532 the Hon'ble Supreme Court has held that an order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. It was held to be a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and court's discretion cannot supersede. At that stage, merits of the case are not to be examined to tailor the relief. A similar view was echoed in the case of Aslam Babalal Desai v. State of Maharashtra MANU/SC/0001/1993 : (1992) 4 SCC 272. It was also held that subsequent filing of the charge-sheet (challan) is not by itself relevant to have the bail cancelled. On curing the defect by filing the charge-sheet (challan) if the prosecution seeks to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest and commit him into custody, prima facie even at that stage, strong grounds indeed would be necessary.

8. In Bipin Shantilal Panchal (Dr) v. State of Gujarat MANU/SC/0749/1996 : (1996) 1 SCC 718 it was clarified that although a default in filing the chargesheet would confer an indefeasible right of the accused to be admitted to bail. However, if an accused fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet has been filed. On the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet. Similar views have been nicely echoed in the cases of Pappu Ram v. State of Rajasthan, Arvind Kumar Saxena v. State and Venkatesh v. State, Rep. by Inspector of Police.

9. The most poignant aspect of the case, however, is the non-issuance of notice to the accused at the stage of hearing the application for extension of time. In the case of Hitendra Vishnu Thakur v. State of Maharashtra, MANU/SC/0526/1994 : (1994) 4 SCC 602 while dealing with a case under Section 20 of the TADA Act, the Hon'ble Supreme Court held that when a report is submitted by the Public Prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension of time on all legitimate and legal grounds available to him. It was further held that even though under the Scheme of that Act, neither clause (b) nor clause (bb) of sub-section (4) of Section 20 of the TADA Act specifically provide for issuance of such a notice, it was held therein that the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution in order to do complete justice to the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the Public Prosecutor, as the case may be, would ensure a fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a proper balance between the cherished interest of the liberty of an accused and the society at large through the prosecuting agency. There is no prohibition to issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused on issuance of such a notice to any party. It was also held that no other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 of the TADA Act on account of the 'default' of the prosecution. The principle of "reading in" into a statute adopted in this case assumes much significance as the principle laid down here extended to the reading of Section 36-A (4) of the NDPS Act subsequently while holding that both the provisions were pari materia.

10. Similar views have been further evolved in the case of Sanjay Dutt v. State through CBI, Bombay (II) MANU/SC/0554/1994 : (1994) 5 SCC 410 where the Hon'ble Supreme Court held that the requirement of such notice to the accused before granting the extension of time for completing the investigation is not merely a written notice to the accused, rather production of the accused at the relevant time in the court informing him that the question of extension of the period for completing the investigation is alone sufficient for the purpose.

11. In yet another landmark judgment in the case of Sanjay Kumar Kedia v. Narcotics Control Bureau MANU/SC/1963/2009 : (2009) 17 SCC 631 the jurisprudence on the subject further evolved when the Hon'ble Supreme Court relied upon the law laid down in the case of Hitendra Vishnu case (supra) while holding that the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA, was pari materia with the proviso to sub-section (4) of Section 36-A of the NDPS Act. It is further held that although an extension beyond 180 days could be granted but laid a rider that it could be so subject to satisfaction of certain conditions. The facts of the case reveals, it did not indicate the compelling reasons which required an extension of custody beyond 180 days. It was further held that a notice was mandatorily required to be issued to the accused to satisfy the provisions of law.

12. A similar view was taken by the Hon'ble High Court of Calcutta in the case of Pradip Maity v. Union of India which held that before the grant of extension of time, notice should be issued to the accused so that he may have an opportunity to oppose the extension which is sine qua non for seeking extension under section 36A(4) of the N.D.P.S. Act. Any sort of violation thereof would entitle the benefit to the accused to get enlarged on bail. A similar view has been taken by the Hon'ble High Court of Guwahati in Jayanandan Prasad v. State of Assam.

13. In Manpreet Singh v. State of Punjab the Hon'ble High Court of Punjab and Haryana held that the objective of an application under Section 36A(4) of the NDPS Act mandates the Public Prosecutor to intimate the Court regarding the progress of the investigation and the specific reasons for the detention of the accused for non-submission of Charge sheet beyond a period of 180 days. In Sanjay Kumar Kedia (supra), it is held that in case no notice is given to the accused or application is not filed by the Public Prosecutor or it does not contain a report regarding the progress of investigation, the application ought to be declined.

14. In Jaspal Singh @ Jassa v. State of Punjab the Hon'ble High Court of Punjab and Haryana followed an earlier judgment of the same High Court in Rajwinder Singh v. State of Punjab1 and held that as per the ratio of the judgment in Sanjay Kedia's case (supra), it is mandatory that a notice of the application under Section 36A(4) of the NDPS Act should be issued to the accused. In case there is noncompliance of the provisions of Section 36 A (4) of the NDPS Act the accused would be entitled to the benefit of provisions of Section 167(2) Cr.P.C. and be released on bail. In Sanjiv Kumar @ Banti v. State of Punjab the Hon'ble High Court of Punjab and Haryana has followed yet another earlier decision, in the case of Hardeep Singh v. State of Punjab2 relying on Sanjay Kumar Kedia (supra) held that under the provisions of Section 36 A (4) of the NDPS Act and Section 167(2) Cr.P.C., an indefeasible right accrued in favour of the accused who had a right to be released on bail in the event of non-compliance of Section 36-A(4) of the NDPS Act. A similar view has been reiterated in Kaka Singh v. State of Punjab. 3

15. The Hon'ble Supreme Court in the case of Union of India through CBI v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav MANU/SC/0580/2014 : (2014) 9 SCC 457 considered the applicable law on the subject and proceeded to affirm the view taken in Hitendra Vishnu Thakur (supra). It was held that upon expiry of the prescribed period without filing of the charge sheet is an indefensible, non-discretionary and mandatory right accrued to the accused to be enlarged on bail. An application for extension of the period of custody without the chargesheet not filed cannot be entertained if the prescribed period has already expired. It has also been held that once the statutory period has expired without the chargesheet being filed the court must dispose of the bail application of the accused under Section 167 (2) on the same day itself. In such case where the statute envisages a compulsive bail there is no question of the same being contested.

16. Another aspect that stands out like a sore thumb in the present case is that the Special Judge has dismissed the bail application in the light of Section 37 of the NDPS Act despite the fact that investigation had not been completed. Such a view is impermissible in view of the unequivocal pronouncement of the law by the Hon'ble Supreme Court in the case of Union of India v. Thamisharasi MANU/SC/0714/1995 : (1995) 4 SCC 190 wherein it has been categorically held that the limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature, the provision is not attracted when the grant of bail is automatic on account of such "default" in filing the chargesheet within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 CrPC. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the chargesheet within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The reasoning behind such a view is that till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him under Section 37(1)(b) of the NDPS Act. It is held that such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.

17. In the light of the aforementioned case laws relied upon, it is felt that the law on the subject needs to be crystallized for better appreciation by the courts below. In the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorize detention for a period up to one year, the law as it stands mandates that the same shall be subject to the following, being complied in letter and spirit. The legal position can be thus summarized as follows: -

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused become entitled to admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

18. Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand, this Court comes to an irresistible conclusion that the Petitioner is entitled to be released on bail.

19. Accordingly, the bail application filed on behalf of the accused-petitioner under Section 439 Cr.P.C. is allowed and the Petitioner shall be released on bail forthwith. The bail bond may be fixed by the Ld. Trial Court in seisin over the matter subject to its satisfaction.

In the light of the above, I.A. No. 480 of 2020 filed by the petitioner for interim bail is rendered infructuous and the same is accordingly disposed of.


1 CRA S-35502 of 2011, decided on December 16, 2011

2CRM-M-17260-2014 decided on 29.5.2014

3CRM-M-22760-2014 decided on 12.8.2014


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