In the case of Hitendra Vishnu Thakur (supra) and
followed in a series of the decisions, the Apex Court has held
that when a petition is filed by the Public Prosecutor seeking
extension of time to submit charge-sheet, its notice should be
issued to the accused before granting such extension so that he
may have an opportunity to oppose it on all legitimate and legal
grounds available to him. Be it noted here that the said decision
pertains to Section 20(4) of TADA Act which is in pari materia
to the provision under Section 36-A(4) of the NDPS Act. This
Court in the case of Lambodar Bag v. State of Odisha,
reported in 2018 (71) OCR 31 has also held that it is mandatory
to grant an opportunity of hearing to the accused before
granting extension of time to complete investigation. Relying
upon the aforesaid case as also the case of Hitendra Vishnu
Thakur (supra) and several other cases decided by the apex
court and other High Courts, this Court has reiterated the said
principle in the case of Iswar Tiwari v. State of Odisha,
reported in 2020 (80) OCR 289. In summarizing the legal
position as regards the provisions under Section 167(2) of
Cr.P.C read with Section 36(A)(4) of the NDPS Act, this Court
in Iswar Tiwari (supra) held that the notice must mandatorily
be issued to the accused and he must be produced before the
Court whenever such an application is taken up and that where
any such report occurs the question of it being contested does
not arise and a right accrues in favour of the accused.
10. Examined in the background of the aforementioned
legal proposition it is evident that the order passed by learned
Special Judge on 27.01.2021 granting extension of the time to
complete investigation by thirty days without having the
accused persons produced before him and without granting
them an opportunity to have their say in the matter renders the
same illegal and unsustainable in the eye of law. {Para 9}
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 9135 of 2021
Biru Singh Vs State of Odisha
CORAM:
JUSTICE SASHIKANTA MISHRA
Dated: 22.02.2022
1. These matters are taken up through hybrid mode.
2. Heard learned counsel for the petitioners and learned
Addl. Standing Counsel for the State.
3. The petitioners are in custody since 22.08.2020 in
connection with Mathili P.S. Case No.110 of 2020
corresponding to T.R. Case No.81 of 2020 pending in the Court
of learned Sessions Judge-cum-Special Judge, Malkangiri for
the alleged commission of offence under Sections 20(b)(ii)C of
NDPS Act, 1985.
4. It is submitted at the outset by Mr. Shyam Manohar that
though the applications have been filed seeking regular bail
citing several grounds yet, the petitioners also pray to be
released on bail as per the provisions under Section 167(2)
Cr.P.C. read with Section 36-A(4) of NDPS Act.
5. The facts of the case are that the petitioners are two out
of several accused persons in the above-mentioned case before
the court below, which arises out of the Mathili P.S. Case No.
110 of 2020 for the alleged commission of offence under
Sections 20(b)(ii)(C)/27-A of the NDPS Act. It is alleged that
on 21.08.2020 while the S.I. of police of Mathili P.S. was
conducting patrolling duty, he received information about
illegal transportation of contraband ganja. Subsequently, a
truck was intercepted, in which four persons including the
driver were occupants. Search of the vehicle revealed several
bags of Ganja, in all weighing 1217 KG 700 grams, which
were seized. After following the statutory formalities, the
accused persons were arrested.
6. It is submitted by Mr. Manohar that the petitioners
having been remanded to judicial custody for the first time on
22.08.2020, the stipulated period of 180 days expired on
17.02.2021. However, the Special Public Prosecutor filed a
petition for extension of time to submit charge sheet on
25.01.2021 but without serving copy thereof on the petitioners.
The said petition was heard by learned Special Judge on
27.01.2021 and was allowed by granting 30 days’ extension
without having the accused persons produced or after hearing
them. This, according to Mr. Manohar, violates the law laid
down by the Apex court in the cases of Hitendra Vishnu
Thakur Vs. State of Maharashtra, reported in AIR 1994 SC
2623; Rakesh Kumar Paul vs. State of Assam, reported in
(2017) 68 OCR (SC) 1: (2017) 15 SCC 67; M. Ravindran vs.
Intelligence Officer, Directorate of Revenue Intelligence,
reported in (2021) 81 OCR (SC) 548: (2021) 2 SCC 485; and
of this Court in the case of Naresh Digal vs. State of Odisha
reported in (2021) 81 OCR 694 and the case of a similarly
situated accused in the very case namely, Rakesh Tiwari in
CRLMC No. 1597 of 2021 decided on 30.11.2021.
On such ground, it is submitted that the order granting
extension of time has to be treated as non-est in the eye of law
and therefore, the accused persons are entitled to default bail.
7. Mr. P.K. Maharaj, learned Addl. Standing Counsel, on
the other hand, has opposed the prayer for bail firstly, on the
ground that after submission of charge sheet it is no longer
open to the petitioner to claim default bail and secondly, the
instant application for bail was filed on other grounds and
hence, the prayer for default bail cannot be considered. Mr.
Maharaj further contends that even otherwise, the petition for
extension of time to submit charge sheet was allowed before
the stipulated period and after hearing the defence counsel and
therefore, no further notice was required to be given to the
accused.
8. It appears that on 27.01.2021 only one of the accused
persons namely, Tapas Sardar, was produced and it was
observed that the other accused persons were not produced as
they had been shifted to Circle Jail, Koraput. It is also
mentioned that the defence counsel was present who objected
to the prayer for extension. A perusal of the case record would
reveal that while Advocate Manas Swain had filed
vakanaltnama for the accused persons on 22.08.2020, advocate
Badal Panigrahi filed vakalantama on behalf of the accused-
Tapas Sardar, for which the previous vakalatnama filed by Sri
Manas Swain on behalf of Tapas Sardar was held to be ceased.
Since it is not mentioned if advocate Manas Swain, who
represented accused persons (petitioners) was present in the
Court or not, the observation of the learned Special Judge in
the order dated 27.01.2021 regarding presence of defence
counsel can only imply that advocate Badal Panigrahi
representing accused Tapas Sardar was present. Therefore, it
must be held that accused persons (petitioners) had gone
unrepresented on that date. In the above fact situation, it can
reasonably be inferred that the accused persons had no notice
of the petition for extension filed by the Special Public
Prosecutor.
9. In the case of Hitendra Vishnu Thakur (supra) and
followed in a series of the decisions, the Apex Court has held
that when a petition is filed by the Public Prosecutor seeking
extension of time to submit charge-sheet, its notice should be
issued to the accused before granting such extension so that he
may have an opportunity to oppose it on all legitimate and legal
grounds available to him. Be it noted here that the said decision
pertains to Section 20(4) of TADA Act which is in pari materia
to the provision under Section 36-A(4) of the NDPS Act. This
Court in the case of Lambodar Bag v. State of Odisha,
reported in 2018 (71) OCR 31 has also held that it is mandatory
to grant an opportunity of hearing to the accused before
granting extension of time to complete investigation. Relying
upon the aforesaid case as also the case of Hitendra Vishnu
Thakur (supra) and several other cases decided by the apex
court and other High Courts, this Court has reiterated the said
principle in the case of Iswar Tiwari v. State of Odisha,
reported in 2020 (80) OCR 289. In summarizing the legal
position as regards the provisions under Section 167(2) of
Cr.P.C read with Section 36(A)(4) of the NDPS Act, this Court
in Iswar Tiwari (supra) held that the notice must mandatorily
be issued to the accused and he must be produced before the
Court whenever such an application is taken up and that where
any such report occurs the question of it being contested does
not arise and a right accrues in favour of the accused.
10. Examined in the background of the aforementioned
legal proposition it is evident that the order passed by learned
Special Judge on 27.01.2021 granting extension of the time to
complete investigation by thirty days without having the
accused persons produced before him and without granting
them an opportunity to have their say in the matter renders the
same illegal and unsustainable in the eye of law. Similar view
was taken by this Court in Rakesh Tiwari’s (supra) case.
11. Coming to the objection raised by learned State
Counsel that the petitioners not having taken the ground of
default bail in the instant bail applications the same cannot be
considered, this Court can do no better than to refer to the
observations made in the case of Rakesh Kumar Paul vs. State
of Assam, reported in (2017) 68 OCR (SC) 1 to the effect that
in the matter of personal liberty the Court cannot and should be
too technical and must lean in favour of personal liberty and
that whether the accused makes a written application for
‘default bail’ or an oral application for ‘default bail’ is of no
consequence. The concerned Court must deal with such an
application. Relying upon the above observations of the apex
Court, this Court in the case of Lambodar Bag (supra) also
held that grounds not taken in the Court below can be taken in
the bail petition in the higher Court and even not-taking of
grounds in the bail petition will not deprive the counsel for the
accused in raising such grounds during hearing of the bail
application. It is further held that even if a ground for grant of
bail is not taken in the bail petition and not argued by the
counsel for the accused, the Court is not deprived of releasing
the accused on bail on such ground if it is legally sustainable.
Strict rules of pleading are not applicable in bail petition. The
objection raised by learned State Counsel is therefore, not
sustainable in the eye of law and hence, not accepted.
12. For the foregoing reasons, therefore, this Court is of the
considered view that the indefeasible right of the accused must
be held to have survived notwithstanding submission of
chargesheet and therefore, they are entitled to be released on
bail.
13. In the result, the bail applications are allowed. Let the
petitioners be released on bail on such terms and conditions as
the court in seisin over the matter may deem fit and proper to
impose including the condition that out of two sureties each for
such amount as may be determined by the trial Court, one
should belong to the district of Malkangiri and further, the
petitioners shall personally appear before the trial Court on
each date of posting of the case, failing which necessary orders
shall be passed to take them to custody again. The petitioners
shall also not leave the territorial jurisdiction of the Court
without obtaining leave of the Court.
14. Issue urgent certified copy as per rules.
(Sashikanta Mishra)
Judge
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