Gauhati High Court

Page No.# 1/15 vs The State Of Assam on 4 October, 2021

                                                                           Page No.# 1/15

GAHC010072232021




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Bail Appln./931/2021

            PRANJIT RABHA AND ANR
            S/O- GHANAKANTA RABHA, R/O- PACHIM BHAIRAGURI, NALKHAMARA,
            P.S. UDALGURI, DIST.- UDALGURI, BTR, ASSAM

            2: PUTUL RABHA
             S/O- BHUBAN RABHA
             R/O- BHOLAGURI
             P.S. KHOIRABARI
             DIST.- UDALGURI
             BTR
            ASSAM

            VERSUS

            THE STATE OF ASSAM
            REP. BY PUBLIC PROSECUTOR, ASSAM.



Advocate for the Petitioner    : MR. D DAS SR. ADV

Advocate for the Respondent : PP, ASSAM


                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                            ORDER

Date : 04-10-2021

Heard Mr. B. Mahajan, learned counsel for the petitioners. Also heard Mr. B. B. Gogoi, learned Additional Public Prosecutor Page No.# 2/15

for the State.

2. This application has been filed by the petitioners, namely, Pranjit Rabha, 2. Putul Rabha under Section 439 of Cr.P.C. seeking bail in connection with the Special (N) Case No. 02/2020 under Section 20(b)(ii)(C) of the NDPS Act pending in the Court of Special Judge, Udalguri arising out of Mazbat Police Station Case No. 84/2019 under Section 20(b) of the NDPS Act.

3. The petitioners were arrested on 21.10.2019 in Mazbat Police Station Case No. 84/2019 under Section 20(b) of the NDPS Act. The learned counsel for the petitioners submits that the petitioners have been languishing in custody since their date of arrest and bail petitions filed before the Special Judge, Udalguri have been rejected.

4. The learned counsel for the petitioner submits that the mandatory period of detention in custody as provided under the statute i.e. Section 36A(4) of the NDPS Act read with Section 167 of the Cr.P.C. had long expired. In spite of such specific statutory provisions, the prayers for bail by the petitioners have been rejected by the Special Judge, Udalguri.

5. The petitioners are before this Court being aggrieved specifically by the orders dated 04.05.2020 and 09.06.2020 passed by the Special Judge, Udalguri whereby their prayer for bail have been rejected. The learned counsel for the petitioners submits that as per the law laid down by the Apex Court a person will have to be released from the custody, if the Page No.# 3/15

mandatory period of detention expires and no charge-sheet is filed or no application seeking extension of time by the Investigating Officer is filed before expiry of the mandatory period. The learned counsel for the petitioners submits that they were arrested on 21.10.2019. Therefore, the mandatory period expired on 18.04.2020 and till then the charge-sheet was not filed nor was any order passed by the Special Judge, Udalguri extending the period of investigation beyond the mandatory period. The learned counsel for the petitioners has vehemently argued that upon expiry of the statutory/mandatory period, the right of the accused for grant of bail/default bail under Section 167(2) accrues automatically. He, therefore, submits that in spite of specific submissions made before the trial court vide impugned order dated 04.05.2020 and 09.06.2020, the applications and the prayers of the petitioners for bail was rejected.

6. The learned Additional Public Prosecutor submits that charge-sheet in the meantime has been filed in the matter and the same is pending trial before the Special Judge, Udalguri as Special (N) Case No. 02/2020 under Section 20(b)(ii)(C) of the NDPS Act. He, therefore, submits that at this stage release of the petitioners on bail is not called for since the trial has proceeded in the matter.

7. We have heard the learned counsel for the parties. The scanned copies of the trial court records called for have also been received. By order dated 29.04.2021 a specific report from Page No.# 4/15

the Special Judge, Udalguri was called for by this Court in respect of the date of filing of the FIR, receipt of the same by the Court, the charge-sheet being laid before the Court and taken cognizance thereof.

8. The said report called for have been received vide communication dated 01.09.2021 and the same is extracted below:-

"3.5.2021 Special (NDPS) 2/2020

The case record is put up as the scan copy of LCR has been called for by Hon'ble Gauhati High Court along with the report in respect of filing of FIR, receipt of same by the court and the date of filing charge-sheet and cognizance taken by the court in respect of the case vide order dated 29.4.2021 passed in connection with Bail Application No.931/2021.

So, I hereby submitting the report on the basis of documents available in the case record.

As per case record the FIR was lodged at 9 a.m. on 21.10.2019. The FIR was seen by the court on 21.10.2019 in connection with Mazbat PS Case No.84/2019.

As reflected in the orders passed by my learned predecessor, the charge-sheet was received by the court on 9.6.2020. As per charge-sheet the I/O Page No.# 5/15

submitted the charge-sheet on 31.1.2020 through O/C, Mazbat P.S. The charge-sheet was forwarded to the Superintendent of Police, Udalguri by the Officer- in-Charge on 19.2.2020. As per report, which is called for from PSI, the charge sheet was received by PSI office, Udalgur Court on 22.5.2020 and the court received the charge-sheet on 9.6.2020 from P.S.I. office. Record further reveals that though there is no specific order was passed regarding the cognizance taken by the court after filing the charge- sheet, but my predecessor passed the order on 25.6.2020 by fixing the case for furnishing the copy on 9.7.2020. So, it can be held that my predecessor took the cognizance of the case after filing the charge-sheet on 25.6.2020.

So, send the scan copy of the LCR alongwith this report to Hon'ble High Court immediately."

9. A perusal of the report reveals that although the Investigating Officer had stated to have submitted the charge- sheet on 31.01.2020 through the Officer-in-charge, Mazbat Police Station; the charge-sheet was received by the Court through the PSI Office, Udalguri only on 09.06.2020. Although in the said report, it is stated that there is no specific order taking cognizance, but vide order dated 25.06.2020 passed by the predecessor Special Judge, the case was fixed for furnishing copy on 09.07.2020 and therefore, it can be seen that the Special Page No.# 6/15

Judge had taken cognizance of the case after filing of the charge-sheet on 25.06.2020. It is not disputed at the bar that the petitioners were arrested on 21.10.2019 and in respect of Section 36A(4) of the NDPS Act, 1985, the mandatory period provided for offences punishable under Section 19 or Section 24 or Section 27(A) or for offences involving commercial quantity; the period of 90 days under Section 167(2) Cr.P.C. shall be construed to be "One hundred and eighty" days. It is further 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.

10. There is no statement made by the learned Additional Public Prosecutor or any reference to that effect as revealed from the report furnished by the Special Judge, Udalguri, that prior to expiry of 180 days there was any order extending the period of investigation beyond the period of 180 days was issued by the Special Judge on the basis of any report submitted by the Public Prosecutor indicating the specific reasons for detention of the accused beyond the said period of 180 days.

11. During the course of hearing of the matter, it was also submitted by the learned counsel for the petitioners that there was an application moved on behalf of the petitioners seeking bail under Section 167(2) Cr.P.C. upon expiry of the statutory period. The learned counsel for the petitioners refers to Page No.# 7/15

impugned order dated 04.05.2020 passed by the Special Judge, Udalguri wherein the reference to a Petition No. 474/20 is reflected in the recital of the said order, which is stated to be application preferred on behalf of the petitioners under Section 167(2) Cr.P.C. However, the said copy of the petition is not available in the case record nor is it available in the scanned copy of the case record called for from the trial Judge, Udalguri nor is there any reference to that petition in the report submitted by the trial Judge in terms of the directions of this Court vide report dated 01.09.2021.

12. From the facts pleaded, it is revealed that the petitioners were arrested on 21.10.2019. As such, the statutory period of detention, if counted from 22.10.2019 will be as under:

      Months                             Period      of
                                         detention
      October, 2019                      10 days
      w.e.f. 22.10.2019 to 31.010.2019
      November, 2019                     30 days
      December, 2019                     31 days
      January, 2020                      31 days
      February, 2020                     29 days
      March, 2020                        31 days
      April, 2020                        18 days
      w.e.f 01.04.2020 to 18.04.2020
      Total                              180 days

13. From the above, it is seen that the period of 180 days under Section 36A of the NDPS Act, 1985 expired on or about

18th April, 2020. As such the right for mandatory bail for the Page No.# 8/15

petitioners had arisen on 18.04.2020 and had continued till 08.06.2020. During this period no order extending the period of investigation was passed by the Special Judge, Udalguri. Consequently, the petitioners ought to have been released on mandatory bail by the Special Judge, Udalguri. Subsequent filing of charge-sheet on 09.06.2020 cannot frustrate the rights of the petitioners which had accrued on 18.04.2020 after expiry of the statutory period of detention. Therefore, on 04.05.2020 when the petitioners filed their bail petition before the Special Judge their right to mandatory bail under Section 167(2) Cr.P.C had undeniably accrued and they ought to have been released on mandatory/default bail subject to fulfillment of conditions that may be imposed by the Special Judge, Udalguri. Under such circumstances, the Special Judge, Udalguri ought to have released the petitioners on mandatory bail on such terms and conditions deemed fit and proper.

14. The orders dated 04.05.2020 and 09.06.2020 of the Special Judge, Udalguri have been carefully perused. It is seen that in the order dated 04.05.2020, there is no reference to the prayer stated to have been made on behalf of the petitioners that they prayed for being released under Section 167(2) Cr.P.C.

15. In the impugned order dated 09.06.2020 although a reference to under Section 167(2) Cr.P.C., however, the right of the petitioners stated to have been accrued under the Page No.# 9/15

provisions of Section 167(2) Cr.P.C., were not adequately addressed by the trial Judge, Udalguri. The petitions were rejected on the merits.

16. In Rakesh Kumar Paul Vs. State of Assam reported in (2017) 15 SCC 67 in a similar situation the Apex Court held that where the petitioner had applied for default or mandatory bail after expiry of the statutory period during which no charge-sheet or challan was filed and the petitioner seeks to enforce his right for default/mandatory bail, the Court is mandatorily required to acknowledge that right and release the petitioner on bail. Even after the charge-sheet is filed subsequently, it will not obliterate the right of the petitioner to pray for mandatory bail. The Apex Court further held that even the written application is not necessary, oral prayer made by the petitioner will be considered sufficient that the petitioner had applied for default bail. The relevant paragraphs of the said Judgments are extracted below:-

"45. On 11-1-2017 [Rakesh Kumar Paul v. State of Assam, 2017 SCC OnLine Gau 573] when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of "default bail" since the statutory period of 60 days for filing a charge-sheet had expired, no charge-sheet or challan had been filed against him (it was filed only on 24-1-2017) and the petitioner had orally applied for "default bail". Under these circumstances, the only course open to the High Court on 11-1-2017 was to enquire from the petitioner whether he was prepared to furnish bail and if so then to grant him "default bail" on reasonable conditions. Unfortunately, this was completely Page No.# 10/15

overlooked by the High Court.

46. It was submitted that as of today, a charge-sheet having been filed against the petitioner, he is not entitled to "default bail" but must apply for regular bail -- the "default bail" chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4-1-2017 and 24-1-2017 when no charge-sheet had been filed, during which period he had availed of his indefeasible right of "default bail". It would have been another matter altogether if the petitioner had not applied for "default bail" for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge-sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for "default bail" during the interregnum between 4-1-2017 and 24-1-2017 as is evident from the decision of the High Court rendered on 11-1-2017 [Rakesh Kumar Paul v. State of Assam, 2017 SCC OnLine Gau 573] . On the contrary, he had availed of his right to "default bail" which could not have been defeated on 11-1-2017 and which we are today compelled to acknowledge and enforce.

47. Consequently, we are of the opinion that the petitioner had satisfied all the requirements of obtaining "default bail" which is that on 11-1-2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge-sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail."

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17. Similar view has been expressed by the Apex Court in another subsequent Judgment in the case of M. Ravindran Vs. Intelligence Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485. In this case, the Apex Court categorically held that the right to be released on default bail will continue to remain enforceable if the accused had applied for such a bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge-sheet during the interregnum when the challenge to the rejection of the bail application is pending before a higher court. The conclusions of the Apex Court in the said judgment are extracted below:-

"25. Therefore, in conclusion:

25.1. Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have "availed of" or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation. Thus, if the accused applies for bail under Section 167(2) CrPC read with Section 36-A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigating agency.

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 Page No.# 12/15

subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet 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.

25.4. Notwithstanding the order of default bail passed by the court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the court, his continued detention in custody is valid."

18. Having noticed the Judgments relied upon by the learned counsels for the petitioners, it is clear that after expiry of the period as provided for under the statute, the rights of the petitioners for default bail accrues. Further, the mandate of Section 167(2)(a) specifically debars a Magistrate to authorize detention of the accused person in custody exceeding the mandatory period, which is 180 days under the NDPS Act, 1985. The Judgment of the Apex Court in Rakesh Kumar Paul (supra) and in M. Ravindran (supra) clearly lays down that the right of an accused clearly accrues under Section 167(2) Page No.# 13/15

Cr.P.C. to be released on bail beyond the mandatory period unless an order extending the detention is passed by the Magistrate/Sessions Judge.

19. In the facts of the present case, the orders impugned in the present petition i.e. 04.05.2020 and 09.06.2020 do not reveal that the trial Judge had decided on the rights accrued of the petitioners under Section 167(2) for being enlarged on bail after expiry of the mandatory period. As seen from the report furnished by the trial Judge, the petitioners were in custody since 21.10.2019 and the charge-sheet has been filed on 09.06.2020. As per report dated 01.09.2021 as called for from the Special Judge, Udalguri the charge-sheet was stated to be filed on 09.06.2020. Since the petitioners had specifically urged their rights to be released on mandatory bail, upon the failure of the Investigation Officer to file the charge-sheet, the right to default/mandatory bail had accrued to the petitioners after expiry of the mandatory period notwithstanding the filing of the charge-sheet on 09.06.2020. Therefore, as discussed above, admittedly, the right of the petitioners to be mandatorily released on bail had accrued to the petitioners on

18th April, 2020 and which although was urged before the Special Judge, Udalguri was rejected.

20. As discussed above, the subsequent filing of the charge- sheet by the Investigating Office cannot be permitted to frustrate the accrued rights of the petitioners to default bail.

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The Special Judge, Udalguri in view of the provisions of Section 167(2) Cr.P.C. Section 36A(4) NDPS Act, 1985 ought to have enlarged the petitioners on mandatory bail.

21. Accordingly, in view of the law laid down by the Apex Court in Rakesh Kumar Paul (supra) and M. Ravindran (supra), since the petitioners had urged their right for mandatory/default bail as for back as 04.05.2020 vide Petition No. 474/20, well prior to the charge-sheet, we direct the petitioners to be released on bail subject to execution of a bail bond of Rs.20,000/- (Twenty Thousand) each with two local sureties of like amount to the satisfaction of the Special Judge, Udalguri. The Bail granted will also be subject to the following conditions:-

1. That the petitioners shall appear before the Special Judge, Udalguri within 7(seven) days from today and on every other date as required/directed by the Special Judge, Udalguri,

2. That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police office or tamper with the evidence,