Rakesh Kumar Rathore vs Union Of India Through Central ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                      A.F.R.
 
                                                                        Reserved on 19.02.2021
 
                                                                         Delivered on 03.03.2021
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21722 of 2020
 

 
Applicant :- Rakesh Kumar Rathore
 
Opposite Party :- Union Of India Through Central Bureau Narcotics
 
Counsel for Applicant :- Ram Prakash Dwivedi,Deelip Kumar, Pranshu Dwivedi
 
Counsel for Opposite Party :- Narendra Deo Rai,Krishna Agarawal
 

 
Hon'ble Sanjay Kumar Singh,J.

1-Heard Mr. Deelip Kumar, learned Senior counsel assisted by Mr. Ram Prakash Dwivedi and Mr. Manish Kumar learned counsel for the applicant and Mr. Krishna Agarawal, learned counsel appearing on behalf of opposite party/(Union of India through Central Bureau of Narcotics, Gwalior). Perused the record.

2-In the present case applicant is accused for the alleged offence under Section 8/22 and 30 of the N.D.P.S. Act and is aggrieved on account of refusing default bail to him under Section 167(2) of the Code of Criminal Procedure, by the trial Court vide order dated 17.07.2020.

Suo Motu order dated 23.03.2020 passed by the Hon'ble Supreme Court, In Re : Cognizance for Extension of Limitation.

3- Here it would be apt to mention that applicant is in jail since 22.10.2019 and before expiry of 180 days (i.e. on 19.4.2020) limitation period for completing investigation, as provided under Section 36A(4) of the N.D.P.S. Act, the Apex Court considering the situation arising out of challenge faced by the country on account of Covid-19 virus passed the order dated 23.03.2020 in Suo Motu Writ Petition (Civil) No(s). 3/2020 extending the period of limitation prescribed under the general law of limitation or special laws (both Central and/or State) w.e.f. 15.03.2020 till further order/s. The aforesaid order dated 23.03.2020 of the Apex Court is reproduced herein below :

"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.

Issue notice to all the Registrars General of the High Courts, returnable in four weeks."

Issue involved in the matter.

4-The issue which arises for consideration in the present case before this Court is "what would be effect of order dated 23.3.2020 (supra) passed by the Apex Court in Suo Motu Writ Petition (C) No(s). 3/2020, In Re : Cognizance for Extension of Limitation, on the right of applicant in granting default bail, who is accused for the alleged offence under N.D.P.S. Act (Special Act) and whether accused applicant is entitled to be released on default bail ignoring the order dated 23.3.2020".

Prosecution case.

5-The prosecution case in brief is that on the basis of information, the officers of the Central Bureau of Narcotics, Gwalior searched the godown of the applicant Rakesh Kumar Rathore on 22.10.2019, which is situated near New Gupta Transport, Free Ganj, P.S. Hari Parvat, District-Agra and recovered 81528 Buprenorphine 2ml Inj. 0.3mg/ml, 73900 Pentazocine 1ml Inj. 30ml/mg, 760737 Alprazolam Tab 0.5 mg, 608000 Tramadol tab. 100Mg, 185856 Tramadol tablet 50 mg, 4000 Tramadol 37.5 mg, 19725 Diazepam 2ml Inj. 5mg/ml, 11400 Nitrazepam Tab. 10mg and 20000 Zolpidem Tab 10 mg. On being asked about the aforesaid recovery, the applicant disclosed that he does not have any document or bill of recovered psychotropic drugs and does not have license for the godown, where the aforesaid psychotropic drugs were kept. The godown from where the psychotropic drugs have been recovered is in the ownership of Mrs. Sunita Devi wife of Rakesh Kumar Rathore as the same had been taken on lease by her for a period from 15.09.2016 to 04.09.2022. It is further the case of the prosecution that inventory of aforesaid seized material in 135 bags was prepared at the godown of the applicant and since there was no arrangement of light in the godown and also considering the security issues to the seized material, goods were shifted to C.G.S.T. Office for completing further legal formalities i.e. drawl of batch-wise sample from the recovered psychotropic drugs. As such, rest of the proceedings were completed at the C.G.S.T. Office, Sanjay Place, Agra.

6-In view of above, the applicant was arrested on 22.10.2019 and remanded to the judicial custody on the same day i.e. on 22.10.2019 for the alleged offence punishable under Section 8/22, 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the N.D.P.S. Act").

About bail application of the applicant.

7-Initially this bail application under Section 439 Cr.P.C. dated 20.12.2020 has been filed on behalf of the applicant after rejection of his regular bail application vide order dated 19.12.2020 of Additional Session Judge, Agra with a prayer to release him on bail in Case Crime No. 03 of 2019, under Section 8/22 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Central Bureau of Narcotics, Gwalior during the pendency of trial.

8-The applicant during pendency of his aforesaid bail application before this Court filed an application dated 14.05.2020 seeking default bail under Section 167(2) of the Code of Criminal Procedure, 1973 before the Court of Sessions Judge/Special Judge (N.D.P.S. Act), Agra, whereas the prosecution has filed an application under Section 36A(4) of the N.D.P.S. Act dated 29.06.2020 seeking extension of time to conclude the investigation. Learned Special Judge (N.D.P.S. Act) Agra vide order dated 17.07.2020 decided both the aforesaid applications and allowed the application dated 29.06.2020 of the prosecution granting four months further time to complete the investigation and simultaneously rejected the application dated 14.05.2020 of the applicant for default bail under Section 167(2) Cr.P.C.

9-The aforesaid order dated 17.07.2020 has been filed by the applicant in the instant bail application before this Court through supplementary affidavit dated 26.08.2020 and thereafter applicant has come up with the plea therein that applicant is entitled for grant of default bail as per the provisions of Section 167(2) of Cr.P.C. On 17.08.2020, prosecution has filed complaint dated 17.08.2020 before the trial court and copy of the same has also been brought on record before this Court as Annexure No. C.A.-1 to the counter affidavit dated 19.10.2020.

Submissions on behalf the accused applicant.

10-Mr. Deelip Kumar, learned counsel for the applicant challenging the order dated 17.7.2020 (supra) rejecting the prayer for default bail of the applicant submitted that:-

10.1-On 22.10.2019 the applicant was arrested and remanded to judicial custody for the alleged offence punishable under Section 8/22, 30 of the N.D.P.S. Act. The period of 180 days prescribed under Section 36(4) of the N.D.P.S. Act for completing the investigation and filing charge sheet/complaint expired on 19.04.2020, but no complaint was filed by the prosecution (Central Bureau of Narcotics), therefore, legal right for grant of default bail to the accused applicant had accrued on 20.04.2020. When right has been accrued to the applicant for grant of default bail, the same cannot be taken out by any means or order.

10.2-The Court concerned had no power to remand the applicant beyond the stipulated period of 180 days. He must pass an order of default bail and communicate the same to the accused applicant to furnish the requisite bail bonds.

10.3-Since the court of learned Special Judge (N.D.P.S.), Agra was not functioning at that time, on account of pandemic COVID-19, therefore, on opening the court, applicant filed application dated 14.05.2020 under Section 167(2) Cr.P.C. seeking default bail.

10.4-The application dated 29.06.2020 of the prosecution seeking extension of time to conclude the investigation in view of Section 36A(4) of N.D.P.S. Act was filed after expiry of 180 days without disclosing any reason, therefore, application dated 29.06.2020 of the prosecution was not maintainable.

10.5-During pandemic COVID-19 also there was no prohibition for the prosecution to complete investigation and to file charge sheet or complaint against the applicant.

10.6-So far as above referred Suo Motu order dated 23.03.2020 passed by Hon'ble Apex Court extending the period of limitation prescribed under the general law of limitation or special laws (both Central and/or State) is concerned, it is submitted that the said order has been passed for the benefit of litigants, who are represented by lawyers and not for the benefit of the prosecution. Said order has come to the rescue of the accused. It is further submitted that the law of limitation bars the remedy, but not the right of accused, therefore indefectible right of the accused applicant cannot be taken out under the garb of order dated 23.03.2020 of the Apex Court.

10.7-Lastly, on the strength of aforesaid submissions, it is prayed that applicant is entitled to be released on default bail under Section 167(2) of Cr.P.C.

10.8-Learned counsel for the applicant relied upon following three judgments :

i)-1985 (1) Crimes (High Court) SC 582, Sudhakar and others Vs. State of U.P.

ii)-Order dated 25.11.2020 passed in Bail Application No. 5384 of 2020 (Abhishek Srivastava Vs. State of U.P) by the Lucknow Bench of this Court.

iii)- M. Ravindran Vs. Intelligence Officer, Directorate of Revenue Intelligence, reported in AIR 2020 SC 5245.

11-Here, it is also pertinent to note that learned counsel for the applicant advanced his argument only on the issue of right of default bail to the accused applicant and did not press the bail application of the applicant on its merit.

Submissions on behalf of opposite party.

12-Per contra, Shri Krishna Agarwal, learned counsel appearing on behalf of the prosecution/Union of India through Central Bureau of Narcotics, Gwalior (opposite party) refuting the aforesaid submissions of learned counsel for the applicant submits that:-

12.1- The applicant was arrested on 22.10.2019 in connection with recovery of huge quantity of contraband of commercial quantity for the offence under Section 8/22 and 30 of the N.D.P.S. Act. Period of 180 days prescribed for completion of investigation under Section 36A(4) of the N.D.P.S. Act was completed on 19.04.2020, but before expiry of the said period, the Apex Court on 23.3.2020 (supra) exercising power under Article 142 read with Article 141 of the Constitution of India, ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s, which is still operative.

12.2 -On 24.03.2020, the complete nationwide lockdown had been declared by the Government of India vide order dated 24.03.2020 for a period of 21 days w.e.f. 25.03.2020, considering the several proactive preventive and mitigating measures after declaring the Covid-19 as pandemic by World Health Organization. Thereafter, the said lockdown was further extended on 14.04.2020 till 03.05.2020, on 01.05.2020 for two weeks and lastly it was extended on 17.05.2020 till 31.05.2020.

12.3- It is submitted that on 08.06.2020, 01.07.2020, 01.08.2020 and 29.08.2020 unlock 1, 2, 3 and 4 were enforced gradually to withdraw lockdown as per the guidelines mentioned therein.

12.4 Much emphasis has been given by contending that the month of March 2020 to June 2020 was peak time of spread of corona virus and at that time all the efforts were being made for enforcing guidelines laid down by the Government of India strictly regarding nationwide lockdown maintaining social distancing, etc. Various places of the state were also declared hotspot and it was not allowed to go there, therefore it was not possible at all to complete the investigation, which requires travel and physical intervention with the persons, who were to be examined in the case. It is submitted that on account of the aforesaid reasons, the prosecution could not file complaint and the application for extension of time within 180 days (before 19.04.2020).

12.5-It is further submitted that after unlock-1, the prosecution has moved an application dated 29.06.2020 seeking extension of time for a period of four months to complete the investigation, because under Section 36A(4) of the N.D.P.S. Act, there is a statutory provision that if it is not possible to complete the investigation within the said period of 180 days, special court may extend the said period upto one year at the report of Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond the said period of 180 days. It is pointed out that in the application dated 29.06.2020 the progress report of the investigation and the specific reason of not completing the investigation within 180 days has been mentioned in Paragraphs 5 and 6 of the application dated 29.06.2020, which are as follows :

"5. It is submitted that the offence involves commercial quantity and accordingly 180 days to conclude the investigation has expired on 19.04.2020. The investigation was underway with sincere efforts to complete it within the time limit of 180 days despite being voluminous, meanwhile, it got halted due to nation-wide lockdown on account of Corona virus (COVID-19). In the given circumstances, it was not possible to conclude the investigation by 19.04.2020. Looking at the current outlook of COVID outbreak and with ever emergence of new cases everyday, it may take at least 4 more months to become the situation conducive to complete the investigation which requires travel and physical intervention with the persons who are yet to be examined in the case. However, it is provided under Section 36A(4) of NDPS Act, 1985 that if it is not possible to complete the investigation within the said period of 180 days, the Special court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond the said period of 180 days.

6. It is in the fitness of things and interest of justice that time to conclude the investigation may be extended for 4 months considering the extraordinary situation in the country owing to outbreak of COVID-19."

12.6-The application dated 29.06.2020 of the prosecution under Section 36A(4) of N.D.P.S. Act for extension of time has been allowed vide order dated 17.07.2020 of the trial court granting four months further time to complete the investigation and within said period prosecution has filed the complaint dated 17.08.2020 on 17.08.2020.

12.7-It is pointed out that the said order dated 17.07.2020 granting four months further time to the prosecution for completing the investigation has become final, as the same has not been challenged by the applicant.

12.8-In view of the order dated 23.03.2020 of the Apex Court, extension application dated 29.06.2020 of the prosecution shall be treated within time.

12.9-Lastly, it is prayed that under the facts and special circumstances of this case as mentioned above, the applicant is not entitled to be released on bail on the ground of default bail under Section 167(2) of the Cr.P.C., in the light of order dated 23.03.2020 passed by the Apex Court.

12.10-Learned counsel for the opposite party heavily relied upon the following order/judgments:-

i- Order dated 23.03.2020 passed by the Apex court in Suo Motu Writ Petition (C) No(s). 3/2020, In Re : Cognizance for Extension of Limitation.

ii- Paragraph no.15 of Judgment dated 08.05.2020 of the High Court of Madras in the case of Settu Vs. State, 2020 (3) MLJ (Crl) 570,

iii- S. Kasi Vs. State Through The Inspector of Police Samaynallur Police Station, Madurai District, 2020 SCC OnLine SC 529.

13-Before delving into the matter, it is useful to quote Section 167(2) of the Cr.P.C. and Section 36A(4) of N.D.P.S. Act, which are as follows :

"Section 167(2) of The Code Of Criminal Procedure, 1973

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that -

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused in produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.]

[Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:]..................."

"Section 36A(4) of the N.D.P.S. Act

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."

Discussion of judgments relied upon by the parties.

14-Firstly, I shall deal with the judgments relied on behalf of the applicant.

14.1-In the case of Sudhakar & others (supra) the accused was arrested on 10.04.1984 for the offences punishable under Sections 147, 148, 149 and 302 of I.P.C. The period for completing investigation within 90 days, had expired on 08.07.1984, but charge sheet was not submitted. On the next day of expiry of period of 90 days i.e. on 09.07.1984, an application was moved before the Judicial Magistrate Ist of District Etawah under Section 167(2) Cr.P.C. for grant of default bail, but the said application was not disposed of on 09.07.1984 and charge sheet was submitted on 10.07.1984. The learned Magistrate passed impugned order dated 13.07.1984 to the effect that he had taken cognizance of the offence and in view provisions of Section 173 (8) of the Cr.P.C., the accused were not entitled to bail. The said order was challenged before the High Court in Criminal Revision, in which the High Court held that the Magistrate acted in violation of proviso (a) to Section 167(2) Cr.P.C. by postponing the consideration of the application for bail till the charge sheet was filed and till he had taken cognizance of the case. Accordingly, revision was allowed and application of the accused for default bail was also allowed.

14.2-In the case of Abhishek Srivastava (supra) the accused after arrest was taken in judicial custody on 16.01.2020 with passing of remand order on 16.01.2020, thereafter the judicial custody continued from time to time and lastly the remand was extended on 11/12.03.2020 for a period of 14 days i.e. 25.03.2020. Before the said date, nationwide lockdown was imposed on 24.03.2020 and the functioning of the courts stood obstructed rather completely closed expect for urgent work as per directives issued by Hon'ble the Chief Justice from time to time considering the pandemic Covid-19 directing that all the courts subordinate to the High Court, Commercial Court, Motor Accident Claims Tribunal and Land Acquisition Rehabilitation and Resettlement Authorities across the U.P. shall remain closed till further orders and remand and bail of accused persons shall be done as per holiday practice. Due to closure of courts from 24.03.2020, no remand orders were passed from 25.03.2020 to 26.06.2020 and in the meantime period of 90 days expired on 14.04.2020 and in absence of any remand order since 25.03.2020, the accused continued in jail till the filing of charge sheet on 01.05.2020, and thereafter until the rejection of default bail on 18.06.2020. On the aforesaid facts, High Court held that during lockdown period and irrespective of the facts that the courts were closed, remand matters were bound to be taken up and wherever the indefeasible right of personal liberty accrued to an accused incarcerated in jail, he ought to have been offered default bail in the manner prescribed under Section 167(2) of the Cr.P.C. Accordingly, the court of Magistrate was directed to release the accused Abhishek Srivastava on default bail on furnishing bail bonds to the satisfaction of the court concerned.

14.3-In the matter of M.Ravindran (supra), the issues regarding default bail has been considered by the Apex Court. Facts of that case were that accused was arrested and remanded to judicial custody on 04.08.2018 for the alleged offence punishable under Section 8(c) read with Sections 22(c), 23(c), 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. After completion of 180 days from the remand date, that is, 31.1.2019, the accused filed application for bail under Section 167(2) of the Code of Criminal Procedure, on 1.2.2019 at 10:30 a.m. before the Trial Court, Chennai on the ground that the investigation was not complete and charge-sheet had not yet been filed. During course of hearing of bail application after completion of argument of the counsel for accused, complainant filed an additional complaint against the accused on 1.2.2019 at 4:25 p.m. and sought dismissal of the bail application on the said basis. On 5.2.2019 the trial court allowed the bail application granting bail to accused on the ground that the court has no power to intervene with indefeasible right of accused conferred on him by the legislative mandate of Section of 167(2) Cr.P.C. Complainant challenged the said bail order before the High Court. The High Court cancelled the bail order granted by the trial court. The accused challenged the said order of the High Court before the Apex Court. The impugned judgment of the High Court was set aside by the Apex Court confirming the order of trial court granting default bail to accused.

15-After going through the aforesaid judgments relied upon by the learned counsel for the applicant, I find that in case of Sudhakar and others (supra) and Abhishek Srivastava (supra), offence against the accused was punishable under Indian Penal Code, therefore, in both the above cases the provisions of Section 167(2) of Cr.P.C. were applicable, in which there is no provision for extension of limitation period after 60 or 90 days, therefore order dated 23.03.2020(supra) of the Apex Court was not applicable in the case of Abhishek Srivastava, whereas in the present case offence is under N.D.P.S. Act, therefore, provisions of Section 36(A)(4) of the N.D.P.S. Act is applicable regarding limitation period for completing investigation and there is provision for extension of time also with the permission of the Court concerned, therefore order dated 23.03.2020 of the Apex Court is applicable in the case in hand. As such, both the aforesaid cases are distinguishable on facts and law, hence not applicable under the facts of the present case. So far as third case M. Ravindran (supra) is concerned, it is relevant to note that in the said case though the offence against the accused was under N.D.P.S. Act, but limitation period of 180 days prescribed for completing the investigation already expired on 13.01.2019, much before coming into force the order dated 23.03.2020 of the Apex Court, whereas in the case in hand before expiry of limitation period of 180 days (i.e. on 19.4.2020 ), the order dated 23.03.2020 of the Apex Court already came into force w.e.f. 15.3.2020, therefore, said judgment is also not applicable on the facts of this case.

16-Now I shall deal with the order/ judgments cited on behalf of the prosecution:-

16.1-Apex Court in Suo-Motu order dated 23.03.2020 (as mentioned above in paragraph no.3) has clearly observed that "We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities".

In view of such observation, this Court is of the view that it is equally binding and applicable upon accused as well as prosecution, if they were being effected by limitation period provided under Special Act, in any manner during pandemic COVID-19/lockdown period.

16.2-In the case of Settu Vs. State (supra), the offence against the accused was under Sections 392 and 397 of I.P.C. In the said case also period as provided under Section 167(2) Cr.P.C. for completing investigation was applicable. The effect of aforesaid order dated 23.03.2020 of the Hon'ble Apex Court was also considered by the High Court of Madras. In the said case, the High Court while granting bail to accused made following observations in paragraphs no.14 & 15 of judgment.

Finding recorded in para no.14 is applicable to such cases, in which limitation period for filing charge sheet is governed by the provisions of Section 162(2) of Cr.P.C., whereas finding recorded in para 15 is applicable for those cases, in which limitation period is governed by any Special Act like N.D.P.S. Act, which is applicable in the case in hand.

"14. Personal liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Cr.P.C. remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon'ble Supreme Court's direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon'ble Supreme Court which is intended to save the preserve rights would result in taking away the valuable right that had accrued to the accused herein.

15. Of course, the construction placed by me will have no application whatsoever in the case of certain offences under certain special laws, such as Unlawful Activities (Prevention) Act, 1967 and NDPS Act, 1985. For instance Section 36-A(4) of the NDPS Act enables the investigation officer to apply to the special court for extending the period mentioned in the statute from 180 days to 1 year if it is not possible to complete the investigation. Thus, under certain statutes, the prosecution has a right to apply for extension of time. In those cases, the benefit of the direction of the Hon'ble Supreme Court made 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020 will apply. But, in respect of the other offences for which Section 167 of Cr.P.C. is applicable, the benefit of the said direction cannot be availed."

16.3-In the case of S. Kasi (supra), the aforesaid judgment dated 08.05.2020 of the High Court of Madras in the case of Settu (supra) was further considered by the Hon'ble Supreme Court. In the said case finding recorded by the High Court of Madras in Paragraphs 14 and 15 of judgment, in case of Settu v/s. State has been approved by the Apex Court. The relevant extract of Paragraphs 27 and 30 of the said judgment are quoted herein below:

"27. There is one more reason due to which the impugned judgment of the learned Single Judge deserves to be set aside. A learned Single Judge of Madras High Court in Crl.OP(MD)No. 5291 of 2020, Settu v. the State, had already considered the judgment of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 and its effect on Section 167(2) Cr.P.C. The above was also a case of a bail where the accused was praying for grant of default bail due to non-submission of charge sheet. The prosecution had raised objection and had relied on the order of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 claiming that period for filing charge sheet stood extended until further orders. The submission of prosecution was rejected by learned Single Judge. The learned Single Judge had made following observations in paragraphs 14 and 15:-

"14. Personal liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Cr.P.C. remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon'ble Supreme Court's direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon'ble Supreme Court which is intended to save and preserve rights would result in taking away the valuable right that had accrued to the accused herein.

15. Of course, the construction placed by me will have no application whatsoever in the case of certain offences under certain special laws, such as Unlawful Activities (Prevention) Act, 1967 and NDPS Act, 1985. For instance, Section 36-A (4) of the NDPS Act enables the investigation officer to apply to the special court for extending the period mentioned in the statute from 180 days to 1 year if it is not possible to complete the investigation. Thus, under certain statutes, the prosecution has a right to apply for extension of time. In those cases, the benefit of the direction of the Hon'ble Supreme Court made 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020 will apply. But, in respect of the other offences for which Section 167 of Cr.P.C. is applicable, the benefit of the said direction cannot be availed."

30. Rajasthan High Court had occasion to consider Section 167 as well as the order of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 and Rajasthan High Court has also come to the same conclusion that the order of this Court dated 23.03.2020 has no consequence on the right, which accrues to an accused on non-filing of charge sheet within time as prescribed under Section 167Cr.P.C. Rajasthan High Court in S.B. Criminal Revision Petition No. 355 of 2020 - Pankaj Vs. State decided on 22.05.2020 has also followed the judgment of learned Single Judge of the Madras High Court in Settu v. The State (supra) and has held that accused was entitled for grant of the default bail. Uttarakhand High Court in First Bail Application No.511 of 2020 - Vivek Sharma v. State of Uttarakhand in its judgment dated 12.05.2020 has after considering the judgment of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 has taken the view that the order of this Court does not cover police investigation. We approve the above view taken by learned Single Judge of Madras High court in Settu v. The State (supra) as well as the by the Kerala High Court, Rajasthan High Court and Uttarakhand High Court noticed above."

Conclusion.

17-After considering the submissions of the learned counsel for the parties, perusing the record and going through the judgments cited on behalf of the parties as well as legal position, this Court arrived at following conclusions:-

17.1-There are two categories of cases regarding period prescribed in law for completing investigation, if accused is in jail. One category for those cases, regarding which the period of 60 or 90 days as the case may be, prescribed under Section 167(2) Cr.P.C. are applicable and another category of cases, which are governed by the period provided under any Special Act, like present case, in which procedure prescribed under Section 36 A(4) of the N.D.P.S. Act is applicable. A plane reading of Section 167 Cr.P.C., it is also clear that under Section 167 Cr.P.C. there is no provision for seeking extension of period of investigation, whereas under Section 36A(4) of the N.D.P.S. Act, Investigating Officer can apply to the special court for extending the period mentioned therein from 180 days to one year, if it is not possible to complete the investigation.

17.2 This Court is of the view that suo-motu order dated 23.03.2020 (supra) is not applicable with regard to such cases, which are governed by the period prescribed under Section 167(2) Cr.P.C., because there is no provision for extension of time, but said order dated 23.03.2020 of the Apex Court is applicable in those cases, which are governed by any Special Act, in which there is provision for extension of period to complete investigation.

17.3-The prosecution in paragraphs no. 5 & 6 of extension application dated 29.06.2020 has given specific reasons of delay in completing investigation due to nation-wide lock down on account of the COVID -19 pandemic. Therefore, argument on behalf of the applicant that extension application dated 29.06.2020 has been filed by the prosecution without disclosing any reason is not liable to be accepted.

17.4-The Apex Court in catena of judgments has settled the law with regard to grant of default bail to the accused on non-submission of police report or complaint within time period prescribed under Section 167(2) Cr.P.C. or any Special Act in favour of accused. It is also well settled that right to default bail under proviso (a) to Section 167(2) of the Cr.P.C. is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file a charge sheet within 60 or 90 days, as the case may be, the accused in custody should be released on bail, but the difficulty in the present case is that the applicant is accused for the alleged offence under NDPS Act, which is a Special Act, therefore provisions provided under Section 36A(4) of the N.D.P.S. Act are applicable in this case, in which Investigating Officer can apply to the special court for extending the period mentioned therein from 180 days to one year, if it is not possible to complete the investigation. As such, order dated 23.03.2020 passed by the Apex Court in Suo Motu Writ Petition (Civil) No(s). 3/2020 extending the period of limitation prescribed under the general law of limitation or special laws (both Central and/or State) w.e.f. 15.03.2020 till further order/s is applicable in the present case.

17.5- The finding recorded by the High Court of Madras, in Paragraphs 14 & 15 of the judgment dated 08.05.2020 in the case of Settu Vs. State (supra) has been approved by the Apex Court in the case of S. Kasi Vs. State (supra). I also concur with the exposition of law as laid down in Paragraph 15 of the judgment of the High Court of Madras.

17.6-In the said order dated 23.03.2020 (supra), specific observation has been made by the Apex Court that the said order has been passed in exercise of power under Article 142 read with Article 141 of the Constitution of India and declared that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

17.7- It is admitted facts to the parties concerned that the applicant was arrested and remanded to judicial custody on 22.10.2019 for the alleged offence punishable under Section 8/22, 30 of the N.D.P.S. Act. The period of 180 days prescribed under Section 36A(4) of the N.D.P.S. Act for completing the investigation and filing charge sheet/complaint expired on 19.04.2020, but before expiry of said period, Apex Court order dated 23.03.2020 was already operative w.e.f.15.03.2020.

17.8- Judgments cited on behalf of the applicant are not helpful to him, particularly in this case, in the light of Suo-motu order dated 23.03.2020 passed by the Apex Court. It is also well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter entire aspect.

17.9-There is no dispute that since 24.03.2020, nation-wide lockdown was enforced due to pandemic COVID-19, and it was difficult situation for the accused persons and other litigants to avail legal remedy as well as for prosecuting agencies to perform their duty. Therefore, the order dated 23.03.2020 of the Apex Court is equally applicable and binding upon accused, other litigants as well as prosecution, if their remedies were being effected by limitation period provided under Special Acts, in any manner during pandemic COVID-19/lockdown period. Prosecuting agencies (State/Central) also comes under the purview of the litigants. On account of this reason, the argument on behalf of the applicant that order dated 23.03.2020 has not been passed for the benefit of the prosecution, is not liable to be accepted.

Result

18-In view of above, this Court cannot ignore the order dated 23.03.2020 of the Apex Court, which is binding upon this Court. Accordingly the claim of the applicant for grant of default bail to him in this case is not liable to be accepted in the light of discussion, as mentioned above considering the order dated 23.03.2020(supra) of the Apex Court.

19- As a fallout and consequence thereof, instant bail application is rejected.

20-However, considering the facts and circumstances of the case, the trial Court is directed to make an endeavor to conclude the trial expeditiously preferably within a period of one year from the date of production of copy of this order without granting unnecessary adjournment to either of the parties.

Order Date :- 3.3.2021

Sunil Kr. Gupta