[Cites 18, Cited by 0]

Bombay High Court

Safiq Khan Rafiq Khan vs State Of Maharashtra Through Police ... on 23 March, 2026

2026:BHC-NAG:4694



                                                                                    72 apl 556.26.odt..odt
                                                         1


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH, NAGPUR.

                              CRIMINAL APPLICATION (APL) NO. 556 OF 2026

                    1.      Safiq Khan Rafiq Khan                                            APPLICANTS
                            Aged about 37 years,
                            Occupation :
                            R/o Near Water Tank, Kamakshi
                            Housing Society Raut Nagar,
                            Narsala Nagar, Nagpur
                            Maharashtra 440034

                                                     // V E R S U S //

                    1.      The State of Maharashtra,
                            Through P.S. Wathoda,                                        NON-APPLICANT
                            Nagpur City
                    -------------------------------------------------------------------------------------------
                    Mr. Mohd. Naveed Opai, Advocate for the applicant.
                    Mr. Nikhil Joshi, APP for non-applicant /State.
                     -----------------------------------------------------------------------------------------

                             CORAM : URMILA JOSHI PHALKE, J.

                             DATED : 23.03.2026

                    ORAL JUDGMENT :

1. Heard.

2. ADMIT. Taken up for final disposal with the consent

of learned counsel for the parties.

72 apl 556.26.odt..odt

3. By this application the applicant is seeking quashing

of the order passed by the Judge Special Court NDPS Act, Nagpur

in Crime No.474/2025 below Exh.1 dated 10.03.2026.

4. The applicant came to be arrested on 11.09.2025 in

connection with Crime No.474/2025 registered under Sections

8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred as 'NDPS Act'). The

crime is registered on the basis of the report lodged by police

constable Vijay Yadav on an allegation that he alongwith other

raiding party members have received an information when they

were on patrolling duty that one person approximately of the age

of 35 to 40 years is roaming on Activa Two Wheeler vehicle

without any number in suspicious condition. As his activities were

suspected therefore, he was intervened. During interception of

the said person his personal search was carried out and during his

personal search in presence of panchas Mefedon drugs of 102 gm

worth of Rs.5,10,000/-, one mobile phone, one Activa moped was

found in his possession. Therefore, he was arrested. On the basis

of the said report, police have registered the crime against the

present applicant and investigation was initiated.

72 apl 556.26.odt..odt

5. As the charge-sheet was not filed within 180 days in

view of the provision under Section 187 subsection 3 of the

Bharatiya Nagrik Suraksha Sanhita, 2023 (for short, 'the BNSS,

2023) (167 (2) of the Code of Criminal Procedure), therefore, the

applicant has preferred an application on 181 st day for seeking

bail on the ground that in view of Section 187(3) the Magistrate

cannot authorize the detention of the accused person in custody

under this sub-section for total period exceeding 90 days where

the investigation relates to an offence punishable with death

imprisonment for life or imprisonment for a term of ten years or

more and on expiry of said period of 90 days and 60 days as the

case may be 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 released under

the provisions of Chapter XXXV for the purposes of that Chapter.

In view of Section 36-A sub-section (4) in respect of the offences

punishable under Sections 19 or Section 24 or Section 27-A or

also for the offences involving commercial quantity the references

in sub-section (2) of Section 167 of the Code of Criminal

Procedure thereof to 90 days where they occur, shall be construed

as reference to 180 days. Proviso to the said sub-section (4) says 72 apl 556.26.odt..odt

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 the investigation and the specific

reasons for the detention of the accused beyond period of one

hundred and eighty days.

6. The application was filed on the ground that within

the 180 days charge-sheet is not filed and therefore, indefeasible

right accrued to the present applicant to release him on bail.

7. The said application was opposed by the State before

the trial Court. After hearing learned APP as well as learned

counsel for the applicant the trial Court observed that the

applicant was produced before the Magistrate on 11.09.2025. His

detention in custody became 180 days. Today, charge-sheet is filed

on the last day. Hence charge-sheet is filed within 180 days. He is

not entitled for default bail. It is further observed that the accused

was arrested. The first date is to be excluded while computing the

days of detention. On 12.09.2025 the detention became for one

day. Considering this fact, if total days of detention in the month

of September comes to be 19 so, today is the 180 th days after 72 apl 556.26.odt..odt

accused is produced before the Court. As charge-sheet is filed, the

applicant is not entitled for the default bail.

8. Being aggrieved and dissatisfied with the same the

present application is filed by the applicant on the ground that it is

erroneously held by the Special Court that the day of the arrest or

the remand is to be excluded. In fact, both days to be included

and if both days are to be included then admittedly charge-sheet

is not filed within 180 days and indefeasible right accrued to the

present applicant. In view of that, the order passed by the Special

Court deserves to be quashed and set aside and applicant to be

released on bail.

9. On perusal of Section 187 (3) of the BNSS which

authorises the detention of the accused person beyond the period

of fifteen days, if Magistrate is satisfied that adequate grounds

exist for doing so, but no Magistrate shall authorise the detention

of the accused person in custody under this sub-section for a total

period exceeding ninety days, where the investigation relates to

offence and punishable with death, imprisonment for life or

imprisonment for a term of ten years or more and on expiry of the 72 apl 556.26.odt..odt

said period of ninety 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 XXX the

purposes of this Chapter. Thus the indefeasible right accrued to

the applicant if the charge-sheet is not filed within 90 days if the

offence punishable death imprisonment for life or imprisonment

for a term of ten years or more.

10. This provision is to be read alongwith Section 36(A)

sub-section (4) of NDPS Act which states that in respect of

persons accused of an offence punishable under section 19 or

section 24 or section 27-A or for offences involving commercial

quantity the references in sub-section (2) of section 167 of the

Code of Criminal Procedure, 1973 the period of "ninety days",

where they occur, shall be construed as reference to "one hundred

and eighty days".

11. The proviso to sub-section (4) shows 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 72 apl 556.26.odt..odt

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 period of one

hundred and eighty days. Admittedly, in the present case no

application for extension of the period of 180 is filed by the

Public Prosecutor indicating the progress of the investigation and

indicating the specific reasons for the detention of the accused

beyond the period of 180 days. Therefore, 180 days period is the

crucial period for the investigating agency to submit the charge-

sheet before the Special Court.

12. Learned counsel for the applicant placed reliance on

the full Bench decision in the case of Enforcement Directorate

Government of India vs. Kapil Wadhawan and another reported in

(2024) 7 SCC 147 wherein the Hon'ble Apex Court has clarified

that if period of remand is calculated from day next to date of

passing of remand order, continuity in process would break,

thereby creating a legal vacuum as even though accused is in

custody on the date of remand order and police empowered to

investigate accused on that day, that day would not be counted

within prescribed 90/60 days, this would not be a just, fair and 72 apl 556.26.odt..odt

reasonable procedure of law and would infringe accused's right to

life, liberty and dignity guaranteed under Article 21 of the

Constitution. Section 167 should be construed so as to be in

consonance with standards of just, fair and reasonableness.

13. While clarifying the positions the Hon'ble Apex Court

has considered the catena of decisions and in paragraph No. 36 it

is observed that the three-Judge Bench in M. Ravindran vs,

Revenue Intelligence Directorate (2021) 2 SCC 485 followed

Rustam vis-à-vis Ravi Prakash Singh Vs. State of Bihar reported in

(2015) 3 SCC (Cri) 605 being per incuriam, cannot in our opinion

be considered as the correct law. Therefore, the Court in

Ravindrans ought to have followed the computation principle laid

down in Chaganti Satyanarayana vs. State of A.P . reported in

(1986) 3 SCC 141.

14. In paragraph No.38 it is observed that in the scheme

of CrPC, as has been elaborated above, the provisions contained in

sub-section (1) of Section 167 runs in continuation of sub-section

(2). The production of the accused before the Magistrate is a

sequel to his arrest by the police and at the same time, the accused

too has a right to be produced before the Magistrate, within 24 72 apl 556.26.odt..odt

hours of his arrest. The day on which the accused is brought on

remand before the Magistrate, sub-section (2) of Section 107

empowers the Magistrate to authorise the detention with the

police either by continuing it or remanding him to Magisterial

custody. There cannot be a pause/break between the two

processes. No delimitation is conceptualised in Section 167 nor

can it be fitted into a period of limitation "from" and "to" since

there is no limitation for completion of investigation and filing of

the charge-sheet. The production before the Magistrate is a

process in continuation of arrest by the police and the Magistrate

will authorise detention for not more than 15 days in the whole

but if he is satisfied that sufficient grounds exist, he may authorise

an accused's detention beyond 15 days otherwise than in the

custody of police.

15. In view of the above observations of the Hon'ble

Apex Court admittedly, the date of arrest or date of the remand is

to be counted while counting 180 days. The object behind the said

provision is required to be taken into consideration, in order to

avoid long incarceration of the accused only because of the

investigation the legislature thought it fit to confer a right on the 72 apl 556.26.odt..odt

accused to be released on default bail if he is prepared to offer bail

bond and the investigation may still continue. This is why the

General Clauses Act cannot be made applicable to subsection (2)

of Section 167. This gives the indefeasible right to the accused to

apply for the bail as the charge-sheet is not filed within 180 days.

In other words to claim a default bail under Section 167(2) first

proviso Cr.PC. the accused does not have to make out any

substantive grounds for securing bail nor does he have to file a

detailed bail application. All he has to aver in the application is

that since the stipulated 60/90 (180) in view of Section 36(A)

subsection 4 of the NDPS Act, that period has expired and the

charge-sheet has not been filed, accused is entitled to bail and

such indefeasible right cannot be defeated by filing the charge-

sheet after the accused has offered to furnish bail.

16. Admittedly, in the present case the report of the

Superintendent Judicial Side District Court shows that the

application for default bail was filed at about 10.50 a.m. as per

the filing Section whereas the charge-sheet was received at 3.00

p.m. therefore, as soon as 180 days are completed on 181st day.

The application filed by the applicant is prior in time, whereas the 72 apl 556.26.odt..odt

charge-sheet filed subsequently. The right to personal liberty and

prosecution right to file charge-sheet is within the limitation

which is enumerated in Section 167 (2) of Cr.P.C. and Section 187

(3) of the 'BNSS' and 36(A) subsection (4) of the NDPS Act. The

Court has to safe guard individuals right as held by the Hon'ble

Apex Court in the said judgment. The 60/90 days limit (180

days) in view of Section 36(A) sub-section (4)) is statutory

requirement which allows the State Agency to investigate serious

offences beyond the 15 days police custody in case State fails to

file charge-sheet or supplementary request for remand within the

stipulated period. The 60/90 day limit is a statutory requirement

which allows the State agencies to investigate serious offences

beyond the 15-day police custody. In case the State fails to file

charge-sheet or supplementary request for remand within the

stipulated 60/90 day period, we need to strike a balance between

the rights of the individual and the restriction on those rights and

prevent prolonged incarceration is to be considered. The statutory

remand period ends, an indefeasible right to default bail accrues

to the accused and same needs to be guarded. The liberty of the

individual is surely relative and regulated. The law therefore

allows authorities to detain accused persons and facilitate 72 apl 556.26.odt..odt

investigation during the said limitation period. It is the duty of the

court to see whether unnecessary detention is there of the

accused and whether the charge-sheet is filed or not filed within

the prescribed period. The right to default bail is not extinguished

by the subsequent filing of the charge-sheet, and the accused

continues to have the right to default bail.

17. In the light of the observation of the Hon'ble Apex

Court in its judgement by Full Bench in Enforcement Directorate,

Government of India vs. Kapil Wadhawan and another subsequent

filing of the charge-sheet does not take away the right of the

present applicant for default bail. In view of that, the application

deserves to be allowed.

18. Hence, I proceed to pass the following order:-

ORDER

(i) The Criminal Application is allowed.

(ii) The order passed by the Special Court NDPS

Act, Nagpur rejecting the bail application of the present

applicant by order dated 10.03.2026 is hereby quashed and

set aside.

72 apl 556.26.odt..odt

(iii) The accused is released on bail in connection

with crime No.474/2025 registered under Sections 8(c),

22(c) and 29 of the NDPS Act, 1985 on executing PR bond

of Rs.1 lakh with one surety of like amount.

(iv) The applicant shall attend the concerned police

station Wathoda Nagpur twice in a month on every 1 st and

15th day of every month till conclusion of the trial and the

police Station Officer shall record his presence.

(v) The applicant shall not leave the jurisdiction of

the Nagpur City without prior permission of the Court.

(vi) The applicant shall furnish his detail address