The division Bench of Justice Joymalya Bagchi, Justice Suvra Ghosh, and Justice Krishna Rao of the Calcutta High Court in the case of Subhas Yadav vs. The State of West Bengal held that the Court may detain an accused person in custody for a period of time beyond 180 days until he exercises his right to statutory bail if he fails to apply for it under sections 167(2) of the Criminal Procedure Code and section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”).
It was opined that the jurisdiction of the Court to remand the Accused to custody arises from the failure of the Accused to make an application for statutory bail and not from the report of the Prosecutor seeking an extension.
Brief Facts:
The primary issue to be ascertained was:
“Whether an accused upon expiry of the period of detention pending investigation as prescribed under Section 36A(4) of the NDPS Act is to be released automatically on statutory bail without a prayer made by him availing such right and expressing his willingness to furnish bail?”
Contentions of the Petitioner:
It was contended that the right to be released on statutory bail is the facet of the right to liberty and cannot be struck down except through the procedure established by law. It was submitted that according to the proviso to section 36A(4) of the Act, a report submitted by the prosecutor after 180 days has passed cannot allow the Special Court to retrospectively extend the duration of custody. The report, therefore, has to be submitted before the expiry of 180 days. It was contended that submission of a belated report seeking an extension of custody cannot take away the right of statutory bail of the Accused.
It was further submitted that the Public Prosecutor's Report must show that the Investigating Agency was not negligent and that there had been considerable progress in the investigation. It also needs to provide "particular reasons" for the detention pending further investigation. Before extending detention past 180 days, the Special Court must declare satisfaction with the twin conditions based on the Public Prosecutor's report.
Contentions of the State:
It was contended that the right to statutory bail doesn't become substantial until it's "availed of." An order extending the period of detention on such an application cannot be considered to have a retrospective effect if it is submitted after 180 days have passed but before the Accused has exercised his right to statutory bail. Furthermore, it was also contended that just because the Special Court failed to apprise the Accused of his right to statutory bail, the same would not entitle him to such relief.
Observations by the Court:
It was observed by the Hon’ble Court that even if the Prosecution failed to file a report requesting an extension of detention by the proviso to Section 36A(4) of the NDPS Act before the expiration of 180 days, the Accused cannot be automatically released on statutory bail unless an application is preferred under Section 167(2) of the Cr.P.C. read with Section 36A(4) of the NDPS Act. It was opined that the jurisdiction of the Court to remand the Accused to custody arises from the failure of the Accused to make an application for statutory bail and not from the report of the Prosecutor seeking an extension.
It was further added that the report submitted by the Public Prosecutor after the expiry of 180 days but before the accused availing of his right does not envisage retrospective operation. The detention period in total can be extended only up to 1 year.
It was expounded by the bench that the right to statutory bail stands extinguished once the report of the Public Prosecutor seeking extension is filed. The Courts are under an obligation to adjudicate on the Prosecutors’ application without any undue delay as it affects the right of the Accused to file for statutory bail.
Concerning the failure of the Court to inform the Accused of his right to statutory bail entitles the Accused to this right, the High Court answered in negative and propounded that this is a cautionary measure and not a mandatory fiat.
Furthermore, the Public Prosecutor's report, which must outline the progress of the investigation and give specific justifications for further detention beyond 180 days while the investigation is ongoing, must be the foundation for any request to extend the length of custody. The twin requirements should be satisfied by the Public Prosecutor and these conditions are
(a) there is appreciable progress in the investigation and
(b) there are specific/compelling reasons to justify further detention pending investigation. Each case has to be decided on its own merits.
The decision of the Court:
Based on these aforementioned observations, the Hon’ble Calcutta High Court held that the bail applications and other proceedings may be decided by appropriate benches according to the facts of each case and in light of the aforesaid declaration of law.
Case Title: Subhas Yadav vs. The State of West Bengal and other connected matters
Coram: Hon’ble Justice Joymalya Bagchi, Hon’ble Justice Suvra Ghosh, and Hon’ble Justice Krishna Rao
Case No: C. R. M. 146 of 2021 (CRAN 1 of 2021) and other connected matters
Advocates for the Petitioner: Mr. Sekhar Kumar Basu, Sr. Adv. Mr. Antarikhya Basu, Adv. Mr. Sayan Mukherjee, Adv. Mr. H S Poddar, Adv.
Advocates for the State: Mr. Saswata Gopal Mukherjee, Ld. P.P. Mr. Aditi Shankar Chakraborty, Ld. A.P.P. Mr. Sanjay Bardhan, Ld. A.P.P. Mr. Rudradipta Nandy, Ld. A.P.P. Mr. Arun Kumar Sarkar, Adv. Mr. Nilay Chakraborty, Adv. Mr. Ranabir Roy Chowdhury, Adv. Mr. Sourav Ganguly, Adv. Mr. Ujjwal Luksom, Adv. Mr. Biswarup Roy, Adv.
Advocates for the NCB: Mr. Sudipto Kumar Majumder, Ld. A.S.G. Mr. Ajoy Kumar Singhania, Adv.
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