A single-judge bench of the Madras High Court comprising of Mr. Justice V. Sivagnanam was entertaining a revision petition filed in relation to a request for statutory bail for the accused under the NDPS Act. The court held that the accused did not have the right in the present case since the right of the accused for bail under Section 167(2) Cr.P.C. does not survive or remain enforceable on the challan being filed. Further, the right to compulsive bail does not survive after the filing of the challan and the Court must examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail.
Brief Facts:
The fact of the case is that the petitioner is the 5th accused in crime No.1166 of 2021 in C.C.No.122 of 2022 on the file of the Principal Special Court under the EC & NDPS Act, Chennai. From the petitioner (A5) along with A4, the respondent police seized 10 numbers of LSD Stamps and they were arrested and remanded to judicial custody on 12.12.2021. This petitioner filed a petition under Section 167(2) Cr.P.C for statutory bail-in Crl.M.P.SR. No.3135 of 2022 was returned on 10.06.2022 on the ground that the charge sheet has already been filed on 03.06.2022. Again, this petitioner filed another petition for statutory bail-in Crl. M.P.No.279 of 2023, which was dismissed on 02.02.2023 by the learned Principal Special Judge for EC & NDPS Act, Chennai on the ground that in this case, the seized contraband is of commercial quantity. A charge sheet has also been filed, which was taken on file in C.C.No.122 of 2022 and the charges were also framed against the accused on 19.01.2023 and the case is posted for trial and the same is under challenge.
Contentions of the Petitioner:
The learned counsel for the petitioner submitted that the petitioner is the 5th accused in the case registered by the respondent police in Crime No.1166 of 2021 for the offences under Section 8(c), 22(c), and 29(1) of Narcotic Drugs & Psychotropic substances Act, 1985. The petitioner/accused was arrested and remanded to judicial custody on 12.12.2021. The respondent police had not filed a final report within the statutory period as contemplated under Section 167(2) Cr.P.C. Hence, the petitioner filed a statutory bail petition before the trial Court and the trial Court dismissed the bail petition and passed the impugned order on the ground that the final report has been filed and the case has been taken on file in C.C.No.122 of 2022 and charges have also been framed against the petitioner on 19.01.2023 but the final report was not filed before filing of the bail petition. The co-accused was released on statutory bail. Hence, the impugned order may be set aside and granted statutory bail to the petitioner also.
Contentions of the Respondent:
The learned Government Advocate (crl. side) for the respondent submitted that the seized contraband is of commercial quantity and Section 37 attracts and the investigation has been completed and the charge sheet has also been filed before the trial Court, which was taken on file in C.C.No.122 of 2022 and the case is posted for trial. Therefore, the petitioner is not entitled to grant statutory bail and thus, pleaded to dismiss the revision case.
Observations of the Court:
The court held that it is a settled principle of law expressed by the Hon'ble Supreme Court in Sanjay Dutt Vs. State through C.B.I. Bombay (II) (1994) 5 Supreme Court Cases 410 that the right of the accused for bail under Section 167(2) Cr.P.C. does not survive or remain enforceable on the challan being filed. Further, it was cleared by the Hon'ble Supreme Court in Hitendra Vishnu Thakur case 1994 SCC (4) 602 that the right is enforceable by the accused only from the time of depart till the filing of the challan and does not survive or remain enforceable on the challan being filed. Reliance was also placed on the Hon'ble Supreme Court’s decision in the State of M.P. Vs. Rustam and others 1995 Supp (3) Supreme Court Cases 221 held that the right to compulsive bail does not survive after filing of the challan and the Court must examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail. In view of the above legal positions, the trial Court considered the statutory bail petition and dismissed the same on 02.02.2023. The court acknowledged that as on the date of consideration of bail, in this case, a final report has been filed, which was taken on file in C.C.No.122 of 2022 and charges have been framed against the accused persons and it is posted for trial. Therefore, the judge found no merit in the contention of the learned counsel for the petitioner and upheld the trial court judgment.
The decision of the Court:
The court upheld the trial court judgment and dismissed the revision petition.
Case Title: R. Rakesh vs State represented by the Inspector of Police
Coram: Mr. Justice V. Sivagnanam
Case No.: Crl.R.C.No.300 of 2023
Advocate for the Petitioner: Mr. K. Anandha Raja
Advocate for the Respondent: Mr. V. Meganathan
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