Saturday, 21 November 2020

Whether court can cancel default bail granted to accused U/S 439(2) of CRPC?

In our view, it appears that the High

Court has committed basic error in not

referring to the provisions of Section

439(2) CrPC which specifically empower the

High Court or the Court of Session to

cancel such bail. Section 439(2) reads as

under:

“439. Special powers of High Court

or Court of Session regarding

bail.—(1)***

(2) A High Court or Court of

Session may direct that any person


who has been released on bail

under this Chapter be arrested and

commit him to custody.”

9. The proviso to Section 167 itself

clarifies that every person released on

bail under Section 167(2) shall be deemed

to be so released under Chapter XXXIII.

Therefore, if a person is illegally or

erroneously released on bail under Section

167(2), his bail can be cancelled by

passing appropriate order under Section

439(2) CrPC. This Court in Puran v.

Rambilas [(2001) 6 SCC 338] has also

clarified that the concept of setting

aside an unjustified, illegal or perverse

order is totally different from the

concept of cancelling the bail on the

ground that the accused has misconducted

himself or because of some new facts

requiring such cancellation.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.801 of 2020


VENKATESAN BALASUBRAMANIYAN Vs THE INTELLIGENCE OFFICER, D.R.I. BANGALORE 

Author: ASHOK BHUSHAN,J.

Dated: November 20, 2020.


Leave granted. These three appeals have been

filed against the common judgment dated 30.11.2018 of

the High Court of Judicature at Hyderabad in Criminal

Petition No.10524 of 2018 filed by the respondent

before the High Court. By the impugned judgment

dated 30.11.2018, the petition filed by respondent

Under Section 439(2) Cr.P.C. has been allowed

cancelling the bail granted to the appellants by

order dated 12.07.2018 by Metropolitan Sessions

Judge, Hyderabad.

2. The facts and issues in these appeals being

similar, it shall be sufficient to refer to the

pleadings in Criminal Appeal arising out SLP (Crl.)

No.1452 of 2019- Venaktesan Balasubramaniyan Vs. The

Intelligence Officer for deciding all these appeals,

brief facts of which are as under:-

2.1 On 11.01.2018, car bearing No. KA 39 M 2117

was intercepted by Directorate of Revenue

Intelligence (hereinafter referred to as

“D.R.I.”), Hyderabad at toll plaza, Kamkole

Village, Munnipalli Mandal, Sangareddy

District, Telangana in which appellants

(driver and two men) were travelling. The

appellants along with other two persons

introduced themselves on being asked as to

whether they have secreted anything illegal

in the car, the appellant’s replied in

negative. The Officers searched the car and

found false casing behind the rear seats on

the side walls of the boot of the car with

metal doors. The appellants’ opened the door

and few transparent packets with off-white

coloured packets were found in the casing

attached to the walls of the boot. The

appellants’ told that packets were of

Narcotic drug, which were loaded in the car

by a person named Suraj at Omerga, Osmanabad

District Maharashtra, which were to be

delivered at Chennai. The Officers in

presence of Panchas and the appellants opened

the packet and tested the materials in the

packet. The appellants were taken to the

office of D.R.I., Hyderabad. The total

quantity of packets (Methaqualone) weighed to

be 45.874 Kgs.


2.2 On 12.01.2018, the appellants were arrested

in exercise of power conferred under Section

42 of NDPS Act, 1985 (hereinafter referred to

as “Act, 1985”). The D.R.I. officers

prepared a crime report against all the

accused-appellants for commission of offence

under Sections 22, 28 and 29 of NDPS Act and

produced them before the VI Additional CMM,

Hyderabad. The duty Magistrate on 12.01.2018

allowed the application for remand and the

appellants were remanded till 25.01.2018. On

25.01.2018, the appellants-accused persons

were produced before the Special Sessions

Judge Court, D.R.I., Hyderabad. Remand of

the appellants was extended from time to

time. On 10.07.2018 the appellants were

remanded only for two days since 180 days

prescribed for filing charge sheet were

coming to an end on 12.07.2018.

2.3 On 12.07.2018, since 180 days had expired,

the appellants filed bail application.

Learned Special Sessions Judge, Hyderabad

granted bail to the appellants under Section

167(2) Cr.P.C. On 12.07.2018, a letter was

received from the Additional Sessions Judge,

Omerga, Maharashtra asking to handover the

custody of appellants to D.R.I., Bangalore as

they were required to appear before the

Additional Sessions Judge, Omerga,

Maharashtra in Special Case (NDPS) No.17 of

2018. The Sessions Court, Hyderabad granted

the custody of three accused on 13.07.2018 to

the D.R.I., Bangalore. D.R.I., Bangalore

produced the appellants before Additional

Sessions Judge, Omerga, Maharashtra on

14.07.2018 where they were remanded till

27.07.2018.

2.4 On 02.08.2018, D.R.I., Bangalore filed

application before the Special Court,

Hyderabad to transfer the records in the

Hyderabad case to Omerga Sessions Court. On

24.08.2018, the Special Sessions Judge,

Hyderabad transferred the records to the

Omerga Court. When Special Court, Omerga,

Maharashtra came to know that the appellantsaccused

have already been granted bail on

12.07.2018 before which date charge sheet was

already filed before the Omerga Court on

06.07.2018 which was taken on file on

11.07.2018 A show cause notice was issued to

D.R.I., Bangalore to give explanation. The

D.R.I., Bangalore filed an application for

cancellation of bail under Section 439(2)

Cr.P.C. in the High Court by filing Criminal

Petition No. 10524 of 2018. The High Court

by the impugned order dated 30.11.2018

cancelled the bail granted under Section

167(2) Cr.P.C. dated 12.07.2018. Aggrieved

against the order dated 30.11.2018, these

appeals have been filed by the three accusedappellants.

3. This Court on 22.02.2019 noticed that only one of

the appellants, i.e., Villayutham Nagu, has been

released in pursuance of the bail order dated

12.07.2018, interim order was passed in the special

leave petition filed by Villayutham Nagu alone and

other two appellants being still under custody,

notices were issued in all the matters.

4. We have heard Shri M. Karpaga Vinayagam, learned

senior counsel for the appellants. Shri Vikramjit

Banerjee, learned Additional Solicitor General has

appeared for the respondent.

5. Learned senior counsel for the appellants submits

that before the Special Judge, Hyderabad when the

case was taken on 12.07.2018 neither any charge sheet

was filed before the Special Court Hyderabad nor any

information was given to the Special Court that any

charge sheet has been filed in Omerga Court,

Maharashtra. No complaint under Section 36A(d) of

NDPS Act having been filed by 12.07.2018 by which

period, 180 days had lapsed, the learned Special

Court had granted default bail on 12.07.2018 to all

the appellants. The accused were entitled for

default bail under Section 167(2) Cr.P.C. Learned

Senior counsel submits that instead of filing an

application for cancellation of the bail before the

Special Court under Section 439(2) Cr.P.C., the

respondent approached before the High Court under

Section 439(2) Cr.P.C. When the bail order was

passed by the Special Court, D.R.I., Bangalore ought

to have informed the Special Court seeking the

cancellation of the bail by giving explanation as to

why the fact of filing combined complaint was not

informed to the Special Court. It is submitted that

recovery of contraband from accused by the D.R.I.

Hyderabad is entirely different from the Omerga case,

which is relating to the recovery of the contraband

manufactured at the factory situated at Omerga. The

appellants are to be charged only for the offence of

possession and the transport. The appellants have no

role to play with reference to the manufacture of

contraband in the factory at Omerga. The seizure of

the contraband was made by the D.R.I., Hyderabad on

11.01.2018 only during the time between 12 PM to 3:30

PM at Hyderabad whereas the recovery of contraband

from the factory at Omerga was made by the D.R.I.,

Bangalore only on 11.01.2018 at 4.30 PM and on

12.01.2018. It is further submitted that when the

Special Court was not informed either on 10.07.2018

or 12.07.2018 that any charge sheet has been filed on

06.07.2018, no error was committed by Special Court

in granting the default bail under Section 167(2)

Cr.P.C.

6. Learned Additional Solicitor General refuting the

submissions of the learned senior counsel for the

appellants contends that the appellant’s Car was

intercepted at Hyderabad on basis of specific and

credible information that huge quantity of NDPS

substance being illegally manufactured in premises of

M/s. Pragati Electrical Work Omerga, which is being

transported to Chennai. A total of 45.874 Kgs of

NDPS substance from the appellants was seized on the

basis of specific intelligence. In the voluntary

statements of accused Nos. 5, 6 and 7 (appellants),

recorded under Section 67 of the Act, 1985 in

connection with the seizure of 45.874 Kgs. of

substance, they have stated that started from Omerga

for Chennai. It is submitted that a combined charge

sheet has been filed taking into consideration the

entire sequence of events including the seizure of

45.874 Kgs. NDPS substance by D.R.I., Hyderabad in

which present appellants are accused Nos. 5, 6 and 7.

It was due to non-communication of information of

combined complaint having been filed on 06.07.2018,

the order was passed by the Special Court on

12.07.2018 granting default bail whereas on the same

day, a letter was received by Special Court,

Hyderabad where the Special Court, Omerga has asked

for the custody of the accused. All the appellants

filed a bail petition on 18.07.2018 before the Omerga

Court under Section 439 Cr.P.C., which bail

application was subsequently withdrawn on 25.09.2018.

On 31.10.2018, upon fulfilling the conditions by one

of the accused, Villayutham Nagu, the learned Omerga

Court was pleased to release the said accused on

31.10.2018 and rest of the two accused are still in

Osmanabad Jail. The High Court rightly cancelled the

bail, which was earlier granted by the learned

Special Judge and the combined complaint having been

filed on 06.07.2018, which was also taken on file on

11.07.2018, the appellants were not entitled for

grant of default bail under Section 167(2) Cr.P.C.


7. We have considered the submissions of the learned

counsel for the parties and have perused the records.

8. The appellants’ car by which they were travelling

from Omerga to Hyderabad on 11.01.2018 was

intercepted by the D.R.I. officials of Hyderabad

Zonal Unit near the Kamkole near Hyderabad and from

the possession of the appellants 45.874 Kgs of

narcotic substance was recovered. Appellants’ in the

statement recorded under Section 67 of NDPS Act have

stated that they have started from Omerga to Chennai

in the car in which the narcotic substance was being

transported. The remand of the appellants was

extended from time to time till 12.07.2018 by Special

Court, Hyderabad. On 11.01.2018, recovery of

narcotic substance was also made at Omerga in the

factory premises of M/s Pragati Electrical Work, MIDC

Omerga, Maharashtra, on which D.R.I. has registered a

case and a combined complaint dated 06.07.2018 was

submitted by Intelligence Officer, D.R.I., Bangalore

before the Special Court, Omerga. Complaint under

Section 36A(1)(d) of NDPS Act for offences under

Section 8(c) punishable under Section 21(c), 22(c),

23(c), 28 and 29 read with Section 38 of the NDPS Act

has been filed dated 06.07.2018 by Intelligence

Officer, D.R.I. in Omerga Court. The appellants have

been made accused Nos. 5, 6 and 7 in the complaint.

The combined complaint has been brought on the record

by the respondent alongwith additional documents in

which with regard to accused Nos. 5, 6 and 7, i.e.,

appellants in these appeals, apart from other

allegations and facts, following has been stated in

paragraphs 110 and 111:-

“110. The complainant submits that,

accused No. 5, 6 and 7 i.e. Shri

Villautham Nagu (A5), Shri Venkatesan

Balasubramaniyan (A6) and Shri Vijay Kumar

L (A7), who were possessing / carrying the

“Ketamlne Hydrochloride” a psychotropic

substance in commercial quantity in their

car bearing No. KA-39-M-2117 from Omerga

to Chennai and the same was seized on

11.01.2018. Hence, they had committed an

offence under Section 8(c) and 9A are

liable to be punished under Section 21(c),

Section 22(c), Section 23(c) read with

Section 28, Section 29 and Section 38 of

the NDPS Act, 1985.

111. Ketamine Hydrochloride seized from

accused No. 5, 6 and 7 under Mahazar dated

11.01.2018, under Mahazar dated 11/

12.01.2018 and under 11.02.2018 have been

submitted to the Hon’ble Court vide

various Memos in a sealed cover are liable

for confiscation under the provisions of

Section 60, 61, 62 and 63 of the NDPS Act.

This Hon'ble Court may be pleased to pass

appropriate order relating to the

confiscation of the above said goods in

terms of Section 63 of the NDPS Act.

Sl.

No.

Quantity Remarks

01. 45.874 Kgs Seized under

Mahazar dated

11.01.2018

02. 500 Grams Seized under

Mahazar dated,

11/12.01.2018

03. 9.65 Kgs Seized under

Mahazar dated

11.06.2018

9. The High Court in the impugned judgment noted

that charge sheet having been filed on 06.07.2018,

i.e., well within the stipulated period of 180 days,

the accused could not have been granted the benefit

under Section 167 Cr.P.C. In paragraph 8, following

has been observed by the High Court:-

“8. ……………….It can be culled out from the

record that filing of the single charge

sheet on 06.07.2018 before the Additional

Sessions Court, Omerga, was not brought to

the notice of the Metropolitan Sessions

Court, Hyderabad for whatever reason may

be. Since the factual aspect remains that

the charge sheet was filed on 06.07.2018

i.e., well within the stipulated period of

180 days, the respondents-accused are not

entitled for the benefit under Section

167(2) Cr.P.C. Under these circumstances,

the respondents-accused are entitled for

bail in accordance with the provisions

laid down under the NDPS Act read with

Sections 437 and 439 Cr.P.C. and

accordingly they are entitled to work out

the remedies under the said provisions.”

10. It is true that the bail granted under Section

167(2) Cr.P.c. could have been cancelled under

Section 439(2) Cr.P.C.. This Court in Pandit Dnyanu

Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC

745 while considering the case where bail granted

under Section 167(2) Cr.P.C. was cancelled under

Section 439(2) Cr.P.C. by learned Sessions Judge

after noticing the facts upheld the order under

Section 439 Cr.P.C. cancelling the bail. Paragraphs

7, 8 and 9 of the judgment are as follows:-

“7. In the present case, against the

accused, FIR for the offences punishable

under Sections 302, 307, 147, 148, 149,

324 and 323 IPC and Section 27 of the Arms

Act was registered. The accused were

arrested on 28-10-2000 and were produced

before the Judicial Magistrate. They filed

an application under Section 167(2) CrPC

on 25-1-2001 for releasing them on bail on

the ground that charge-sheet was not

submitted within the stipulated time and

the court released them on bail on the

same date by exercising jurisdiction under

Section 167(2) CrPC. The State filed an

application on 31-1-2001 under Section

437(5) and Section 439(2) CrPC before the

Sessions Judge, Kolhapur for cancellation

of bail. Before the said application could

be finally disposed of, the accused

preferred an application Ext. 8 submitting

that an application under Sections 437(5)

and 439(2) was not maintainable before the

Sessions Court and the State ought to have

approached the learned Magistrate for

cancellation of the bail. That application

was rejected by the learned Additional

Sessions Judge by order dated 3-3-2001.

Thereafter, the learned Additional

Sessions Judge by judgment and order dated

2-5-2001 allowed the said application and

set aside the order passed by the Judicial

Magistrate on the ground that the accused

were released on the 89th day, that is,

before expiry of 90 days.

8. In our view, it appears that the High

Court has committed basic error in not

referring to the provisions of Section

439(2) CrPC which specifically empower the

High Court or the Court of Session to

cancel such bail. Section 439(2) reads as

under:

“439. Special powers of High Court

or Court of Session regarding

bail.—(1)***

(2) A High Court or Court of

Session may direct that any person


who has been released on bail

under this Chapter be arrested and

commit him to custody.”

9. The proviso to Section 167 itself

clarifies that every person released on

bail under Section 167(2) shall be deemed

to be so released under Chapter XXXIII.

Therefore, if a person is illegally or

erroneously released on bail under Section

167(2), his bail can be cancelled by

passing appropriate order under Section

439(2) CrPC. This Court in Puran v.

Rambilas [(2001) 6 SCC 338] has also

clarified that the concept of setting

aside an unjustified, illegal or perverse

order is totally different from the

concept of cancelling the bail on the

ground that the accused has misconducted

himself or because of some new facts

requiring such cancellation.”

11. It is not even submitted before us that Omerga

Court where common complaint has been filed against

the accused had no jurisdiction to inquire and try

the offence. It was due to some miscommunication

that at the time when Court passed the order on

12.07.2018, the factum of filing of combined

complaint dated 06.07.2018 was not brought into the

notice of Special Court, Hyderabad. Although, letter

of the same date 12.07.2018 was received by Special

Court, Hyderabad from Special Court, Omerga praying

for custody of the appellants, which custody was also

granted by the Special Court, Hyderabad on the next

day, i.e., 13.07.2018. All these facts were brought

before the High Court in application filed under

Section 439(2) Cr.P.C. and the High Court has rightly

cancelled the bail order dated 12.07.2018. We do not

find any error in the order of the High Court

cancelling the bail order dated 12.07.2018.

12. It is true that two offences, one at Hyderabad

being at the instance of D.R.I., Hyderabad namely

D.R.I. 48 of 2018 was registered and another case

Special NDPS No. 17 of 2018 by the D.R.I., Bangalore,

Zonal Unit. A combined complaint taking care of both

the offences was filed before the Special Court,

Omerga as noted above wherein offences committed by

the accused were also inquired and dealt with. There

is ample material in the complaint that the

transportation of narcotic substance started from

Omerga, Maharashtra and was being allegedly to be

taken to Chennai and intercepted at Hyderabad. The

complaint, which has been brought on the record gives

the detailed facts including the journey and the

interception of appellants at Hyderabad. The

combined complaint having been filed on 06.07.2018,

i.e., well within 180 days, the High Court did not

commit any error in cancelling the default bail

granted to the appellants on 12.07.2018.

13. We, thus, are of the view that there is no ground

for interfering with the impugned judgment /order of

the High Court. We have noted above that regular

bail application under Section 439 Cr.P.C. was filed

before the Omerga Court by the appellants, which was

withdrawn on 25.09.2018, we are of the view that it

is open for the appellants to file regular bail

application before Omerga Court under Section 439

Cr.P.C. afresh, which may be considered on merits

without being influenced by any observations made by

the order passed by the High Court in the impugned

judgment or observations made by us. We further

observe that bail application to be filed by the

appellants under Section 439 Cr.P.C. be considered

and decided expeditiously. The order dated 12.07.2018

having been set aside by the High Court, which order

having been confirmed by this Court, the appellant,

Villayutham Nagu is to surrender before the Special

Court, Omerga. All the appeals are dismissed subject

to liberty granted to the appellants as above.

......................J.

( ASHOK BHUSHAN )

......................J.

( R. SUBHASH REDDY )

......................J.

( M.R. SHAH )

New Delhi,

November 20, 2020.


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