Chattisgarh High Court

Siraj vs State Of Chhattisgarh on 6 May, 2022

                                   1


                                                                     AFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                  Criminal Revision No. 394 of 2022

      Siraj, S/o. Late Shri Noor Mohammad, aged about 40 years, R/o.
      Mominpara Parradand, Jilani Painter Street, P.S.-Kotwali,
      Ambikapur, Distt. - Surguja (C.G.)

                                                           ---- Petitioner

                                  Versus

      State of Chhattisgarh, Through the District Magistrate, Ambikapur,
      Distt. Surguja (C.G.)

                                                        ----Respondent.



For Petitioner          : Mr. Sunil Sahu, Advocate.
For Respondent          : Mr. Lalit Jangde, Govt. Advocate.


               Hon'ble Mr. Justice N.K. Chandravanshi

                            Order On Board
06-05-2022

      Heard on admission.

1.    This criminal revision has been preferred against the order dated

23.03.2022 passed by Special Judge (NDPS), Ambikapur, District

Sarguja in Special Case No. 17/2022 (State of Chhatisgarh v. Siraj)

whereby an application filed by the petitioner under Section 167(2) of the

Cr.P.C. for grant of default bail was dismissed.


2.    Facts

of the case, in brief, are that on 21.09.2021 at about 10

O'clock at night, police of police Station Gandhi Nagar, District Sarguja

on the basis of secret information received from the informer, seized 99

nos. sealed bottle, each containing 100 ml, total 9900 ML (9.900 L) of

psychotropic substance, namely, Maxcoff syrup from the illegal

possession of the applicant. On the basis of above facts, FIR No. 0507

under Section 22(c) of Narcotic Drugs and Psychotropic Substances

Act, 1985 (henceforth "NDPS Act") was registered against the

applicant and at about 2.10 at night he was arrested and on the same

day i.e. on 22.9.2021, he was produced before the Special Judge,

Sarguja at Ambikapur alongwith application for grant of judicial

remand. On 22.9.2021 itself first remand was granted till 5.10.2021,

subsequently, judicial remand was taken in several occasions. Lastly,

the judicial remand was obtained up-till 21.03.2022. On 21.03.2022,

again application for grant of judicial remand was filed but the same

was dismissed by learned Special Judge, Ambikapur, Sarguja holding

that 181 days of judicial remand of the applicant was completed on

21.03.2022, despite that charge-sheet was not filed and further

remand for one day i.e. up till 22.3.2022 has been sought, but no

report has been enclosed with the remand application as per proviso

to Section 4 of Section 36(A) of the NDPS Act, which could

demonstrate sufficient reasons for further detention of applicant and

since extended period of filing final report i.e. 180 days has already

been elapsed, therefore, learned Special Judge dismissed the

application for grant of judicial remand.

3. On 22.3.2022, applicant filed an application under Section 167

(2) of the Cr.P.C. for grant of default bail. After hearing applicant and

the prosecution, the case was posted for orders on 23.3.2022 and on

23.3.2022, learned Special Judge dismissed the application for grant

of default bail, hence this criminal revision.

4. Learned counsel appearing for the applicant would submit that

present crime has been registered against the applicant under Section

22(c) of the NDPS Act, as alleged psychotropic substance comes

under commercial quantity, hence, as per Sub-Section 4 of Section 22

of the NDPS Act, charge-sheet should have been filed within the

extended period for filing of charge-sheet i.e. 180 days but in the

instant case, the police filed charge-sheet on 182 nd day after first

judicial remand of the applicant, despite that learned court below has

refused to grant default bail and denied indefensible right of bail to the

applicant, which is not in accordance with law. It is further submitted

by learned counsel for the applicant that on 21.3.2022, applicant had

objected orally for grant of further judicial remand, as police did not file

charge-sheet within a period of 180 days and further remand was

denied by learned Special Judge. On the same day i.e. on 21.03.2022,

applicant prepared application for grant of default bail and filed before

learned Special Judge. But his application was not decided on

22.3.2022 and fixed the case for orders on 23.3.2022 and on

23.3.2022, his application was rejected holding that charge-sheet is

filed on 22.3.2022 and thereafter application for default bail was filed

by the applicant whereas since the police did not file charge-sheet

within a period of 180 days, hence, indefensible right of

accused/applicant was accrued in his favour, therefore, learned

Special Judge ought to have granted default bail to the applicant,

hence, it is prayed that revision petition be allowed and default bail

may be granted to the applicant. He placed reliance upon the

judgments of the Supreme Courts in the matters of M. Ravindran v.

Intelligence Officer, Directorate of Revenue Intelligence 1, Uday

Mohanlal Acharya v. State of Maharashtra 2 & Vinay Dubey &

another v. State of C.G. 3 in support of his submissions.

5. On the other hand, learned counsel for the State vehemently

opposes the submissions made by counsel for the applicant and

submits that although challan was not filed within extended period of

180 days from the date of first remand and the same was filed on

182nd day and on the same day applicant has also filed an application

for grant of default bail but the impugned order dated 23.03.2022 itself

shows that applicant has filed an application under Section 167 (2) of

the Cr.P.C. for grant of default bail after filing of charge-sheet. Thus,

since charge-sheet was filed before filing of application for grant of

default bail, due to this, applicant is not entitled for grant of default bail,

and, therefore, learned Special Judge has not committed any illegality

or infirmity in rejecting the default bail application filed by the applicant.

6. I have heard learned counsel appearing for the parties and

perused the case diary as well as material available on record.

1    (2021) 2 SCC 485
2    (2001) 5 SCC 453
3    2022 (1) CGLJ 193

7. Perusal of case diary and impugned order would go to show that

the instance case pertains to illegal possession of psychotropic

substance, which comes under the commercial quantity, which is

punishable under Section 22 (c) of the NDPS Act, therefore, as per

proviso to Sub-Section 4 of Section 36 of the NDPS Act, charge-sheet

should have been filed within the extended period of 180 days from the

first judicial remand dated 22.9.2021. Hon'ble Supreme Court in the

case of Central Bureau of Investigation v. Nazir Ahmed Sheikh 4

has held that the period for filing of charge-sheet would begin to run

and be counted from the next date of arrest of the accused. However,

the date of accused being sent on remand would be excluded but the

date on which charge-sheet was filed is to be included. Thus, in the

instant case the charge-sheet was to be filed till 21.3.2022 but the

same was filed on 22.3.2022 i.e. 182nd day from the date of first judicial

remand and since, charge-sheet was not filed within 180 days,

therefore, right of default bail had arisen in favour of applicant.

8. Certified copy of the order-sheet dated 22.03.2022 would go to

show that application for default bail under Section 167 (2) of the

Cr.P.C. was filed by the applicant on 22.03.2022. Order sheet dated

dated 23.03.2022 would also go to show that on 22.03.2022, charge-

sheet of the case was also filed by the police against the applicant.

Thus, application for default bail and charge-sheet was filed on the

same day but impugned order specifically demonstrate that after filing

4 AIR 1996 (83) SC 2980

of charge-sheet, application under Section 167 (2) of the Cr.P.C. for

grant of default bail was filed by the applicant, therefore, his

application for grant of default bail has been dismissed by the learned

Special Judge (NDPS).

9. Thus, issue involved in this case is whether right of default bail

under Section 167 (2) of the Cr.P.C. survives, when charge-sheet

already is filed before filing of default bail application ?

10. Period for filing of charge-sheet has been provided under the law

to saddle the liability upon the Investigating Agency for the purpose to

investigate the matter as early as possible or up till the period

prescribed under the law. If Investigating Agency is failed to file

charge-sheet within the prescribed period, then indefensible right of

default bail under Section 167 (2) of the Cr.P.C. comes into play, on

account of fault committed by the Investigating agency by not filing

charge-sheet within the prescribed period. But after prescribed period,

if the applicant/accused does not claim his right of default bail and

prior to that charge-sheet is filed, then status of right of default bail got

changed.

11. In the matter of Uday Mohanlal Acharya v. State of

Maharashtra 5, their Lordships of the Supreme Court has held as

under :-

5 (2001) 5 SCC 453

"23. The Constitution Bench in the aforesaid judgment [Sanjay Dutt v. State through CBI 6 ] has clearly laid down that the indefeasible right of the accused `is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if not already availed of . [Emphasis added]. It has further laid down that custody of the accused after challan has been filed is not governed by the provisions of Section 167 of the Code, but different provisions of the Code. The right of the accused cannot be enforced after the challan is filed `since it is extinguished the moment challan is filed . The case of Sanjay Dutt also referred to the views expressed by the three earlier Constitution Benches of this Court in connection with writ of habeas corpus on the ground that there was no valid order of remand passed by the court concerned. It has reiterated that a petition seeking writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused has to be dismissed if on the date of the return of the rule the custody or detention is on the basis of a valid order."

12. The said proposition has been relied upon by the Supreme Court

in the matter of M. Ravindran v. Intelligence Officer, Directorate of

Revenue Intelligence 7 with full rigour and held thus:-

"25.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution

6 (1994) 5 SCC 410 7 (2021) 2 SCC 485

before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

25.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC."

13. Applying the ratio of law laid down by Hon'ble Supreme Court in

the afore-cited cases (supra) to the facts of the present case, it is quite

vivid that as per impugned order though on 22.3.2022 charge-sheet

was filed against the applicant under Section 22(c) of the NDPS Act

but on the same day application for default bail under Section 167(2)

of the Cr.P.C. was also filed by the applicant. It also appears that

though, according to counsel for the applicant default bail application

was filed by the applicant on 21.3.2022 but order sheet of learned

Special Judge does not support his contention, because, as per order

sheet dated 22.3.2022 that application was filed by the applicant on

22.3.2022 itself. Even endorsement on the application also shows that

it was filed on 22.3.2022 only. Contention of paragraph 3 of default bail