Gauhati High Court
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Page No.# 1/9
GAHC010233782022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Case No. : Bail Appln./3091/2022
AMINUR RAHMAN AND ANR
S/O LATE SOBAHAN ALI
R/O VILL- TIAMARI PT.II
(MALATIKHAMAR), P.S. GAURIPUR
DIST. DHUBRI, ASSAM
2: HAFIZUR RAHMAN
S/O BAZRUL HUDA
R/O VILL- TIAMARI PT.II (MALATIKHAMAR)
P.S. GAURIPUR
DIST. DHUBRI
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. B K MAHAJAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 22.12.2022
Heard Mr. D. Bora, the learned counsel appearing on behalf of the
Applicants and Mr. K.K. Paresar, the learned Additional Public Prosecutor,
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Assam .
2. This is an application filed under Section 439 of the Code of Criminal
Procedure, 1973 praying for grant of regular bail to the Applicants, namely, 1.
Aminur Rahman & 2. Hafizur Rahman, who were arrested on 21/06/2022 in
connection with Gauripur P.S.Case No. 259/2022 registered under Section 22
(c) of the NDPS Act, 1985.
3. The learned counsel for the Applicants submitted that in terms to
Section 36 A(4) of the NDPS Act, the statutory period within which the charge-
sheet is required to be filed is 180 days. Accordingly, in the instant case the
180 days expired on 19/12/2022. He further submitted that the said period of
180 days can be extended by the Special Court to 1 year on the report of the
Public Prosecutor indicating the progress of the investigation and by citing
specific reasons for detention of the accused beyond the period 180 days. The
learned counsel submitted that neither the P.P. have taken any action before
the Special Court or before this court to file any application in terms to proviso
to Section 36A (4). Under such circumstances, the Applicants ought to be
enlarged on default bail.
4. The learned counsel had submitted that if the accused applies for bail
under Section 167(2) CrPC read with Section 36A (4) of the 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
information from the learned P.P. He further submitted that the right to be
released on default bail continues to be remained enforceable, if the accused
had applied for such bail notwithstanding the pendency of the bail application,
or subsequent filing of the charge-sheet or report seeking extension of time by
the prosecution before the Court or filing of the charge sheet during the
interregnum, when challenge for the rejection of the bail application is
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pending before the High Court. The learned counsel submits that during the
pendency of the instant petition the statutory period of 180 days have expired
on 19/12/2022 and therefore he orally submits that the Applicants may be
granted the default bail in terms to Section 167(2) read with Section 36A(4) of
the NDPS Act.
5. The learned Additional Public Prosecutor fairly submits that that the
period of 180 days had expired on 19/12/2022 and till today there is no
charge sheet filed. He further stated that he had informed the Officer of
Gauripur Police Station, one Sri Rituraj Nath pursuant to the order passed by
this Court on 14/12/2022 to take back the case diary and do the needful. He
further submitted that a signal was also sent to the said Officer-In-Charge to
take back the case diary and do the needful on 15/12/2022. However, the
Office-in-charge did not show any interest.
6. The learned Public Prosecutor further submitted that today also the he
called the Officer-in-Charge to provide him instructions pertaining to the case
diary so that he can take appropriate steps in terms with the proviso to
Section 36A(4) of the NDPS Act but today also the said Officer in Charge did
not show any interest in that regard.
7. Taking into account the lackadaisical attitude of the Officer-in- Charge
as revealed from the submission made by the Additional Public Prosecutor, this
Court had requested Mr. D. Nath, the learned senior Government Advocate to
assist this Court. The learned Senior Government Advocate apprised this
Court that there are steps being taken and he would also communicate the
displeasure of this Court in the manner in which the Officer-in-charge of
Gauripur Police Station had conducted himself as would appear from the
submission of the learned Additional Public Prosecutor.
8. Be that as it may, this Court for the purpose of deciding the instant
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application would like to refer to the judgment of the Supreme Court in the
case of M. Ravindran Vs. Intelligence Officer, Directorate of Revenue
Intelligence reported in (2021) 2 SCC 485 and more particularly to
paragraph Nos. 20 and 25 and its sub-paragraphs. The same being relevant
are quoted herein below:
20. There also appears to be some controversy on account of the
opinion expressed in Hitendra Vishnu Thakur5 that the Public Prosecutor
may resist grant of default bail by filing a report seeking extension of
time for investigation. The Court held that:
"30. ... It is, however, permissible for the Public Prosecutor to resist
the grant of bail by seeking an extension under clause (bb) by filing
a report for the purpose before the court. However, no extension
shall be granted by the court without notice to an accused to have
his say regarding the prayer for grant of extension under clause
(bb). In this view of the matter, it is immaterial whether the
application for bail on ground of "default" under Section 20(4) is
filed first or the report as envisaged by clause (bb) is filed by the
Public Prosecutor first so long as both are considered while granting
or refusing bail. If the period prescribed by clause (b) of Section
20(4) has expired and the court does not grant an extension on the
report of the Public Prosecutor made under clause (bb), the court
shall release the accused on bail as it would be an indefeasible right
of the accused to be so released. Even where the court grants an
extension under clause (bb) but the charge-sheet is not filed within
the extended period, the court shall have no option but to release
the accused on bail if he seeks it and is prepared to furnish the bail
as directed by the court."
(emphasis in original and supplied)
This was affirmed by the Constitution Bench in Sanjay Dutt, wherein it
was held that the grant of default bail is subject to refusal of the prayer
for extension of time, if such a prayer is made. This seems to have
given rise to the misconception that Sanjay Dutt endorses the view
that the prosecution may seek extension of time (as provided for under
the relevant special statute) for completing the investigation or file a
final report at any time before the accused is released on bail,
notwithstanding the fact that a bail application on ground of default has
already been filed.
20.1. The observations made in Hitendra Vishnu Thakur and Sanjay
Dutt to the effect that the application for default bail and any
application for extension of time made by the Public Prosecutor must
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be considered together are, in our opinion, only applicable in situations
where the Public Prosecutor files a report seeking extension of time
prior to the filing of the application for default bail by the accused. In
such a situation, notwithstanding the fact that the period for
completion of investigation has expired, both applications would have
to be considered together. However, where the accused has already
applied for default bail, the Prosecutor cannot defeat the enforcement
of his indefeasible right by subsequently filing a final report, additional
complaint or report seeking extension of time.
20.2. It must also be added and it is well settled that issuance of
notice to the State on the application for default bail filed under the
proviso to Section 167(2) is only so that the Public Prosecutor can
satisfy the court that the prosecution has already obtained an order of
extension of time from the court; or that the challan has been filed in
the designated court before the expiry of the prescribed period; or that
the prescribed period has actually not expired. The prosecution can
accordingly urge the court to refuse granting bail on the alleged ground
of default. Such issuance of notice would avoid the possibility of the
accused obtaining default bail by deliberate or inadvertent suppression
of certain facts and also guard against multiplicity of proceedings.
20.3. However, Public Prosecutors cannot be permitted to misuse the
limited notice issued to them by the court on bail applications filed
under Section 167(2) by dragging on proceedings and filing subsequent
applications/reports for the purpose of "buying extra time" and
facilitating filling up of lacunae in the investigation by the investigating
agency.
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 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
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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.
9. From the above quoted paragraphs, it would be seen that the right for
default bail is an indefeasible statutory right of the accused and this very right
is integrally connected with the right to life and personal liberty as enshrined
under Article 21 of the Constitution. This very right, in the opinion of this
Court, cannot be negated if the accused applies for default bail when it
accrues to him/her subject to filing the bail application before submission of
the charge-sheet, additional complaint or a report seeking extension of time
in terms with the proviso to Section 36 A (4) of the Act of 1985.
10. In the instant case, as of now, admittedly the charge sheet has not
been filed and there is also no application filed seeking extension of time in
terms to Section 36A (4) before this Court or even before the Special Court.
Although the instant application has been pending but upon the period of 180
days being over on 19/12/2022, the learned counsel appearing on behalf of
the applicants has verbally made the application for grant of default bail. As
held by the Supreme Court in the case of Rakesh Paul Vs. State of Assam
reported in (2017) 15 SCC 67 such application can also be made orally.
Paragraph 40 of the said judgment is reproduced below.
"40. In the present case, it was also argued by the learned counsel for the State that the
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petitioner did not apply for "default bail" on or after 4-1-2017 till 24-1-2017 on which
date his indefeasible right got extinguished on the filing of the charge-sheet. Strictly
speaking, this is correct since the petitioner applied for regular bail on 11-1-2017 in
the Gauhati High Court -- he made no specific application for grant of "default bail".
However, the application for regular bail filed by the accused on 11-1-2017 did advert
to the statutory period for filing a charge-sheet having expired and that perhaps no
charge-sheet had in fact being filed. In any event, this issue was argued by the learned
counsel for the petitioner in the High Court and it was considered but not accepted by
the High Court. The High Court did not reject the submission on the ground of
maintainability but on merits. Therefore it is not as if the petitioner did not make any
application for default bail -- such an application was definitely made (if not in
writing) then at least orally before the High Court. In our opinion, in matters of
personal liberty, we cannot and should not be too technical and must lean in favour of
personal liberty. Consequently, whether the accused makes a written application for
"default bail" or an oral application for "default bail" is of no consequence. The court
concerned must deal with such an application by considering the statutory
requirements, namely, whether the statutory period for filing a charge-sheet or challan
has expired, whether the charge-sheet or challan has been filed and whether the
accused is prepared to and does furnish bail."
11. Under such circumstances, this Court is of the opinion that the Applicants
are entitled to the grant of default bail on the facts and circumstance of the
instant case.
12. The Court of the Special Judge, Dhubri is directed to release the
Applicants on default bail on such terms and conditions as may be reasonable
on the basis of a certified copy of this order being produced before the said
Court. However, it is made clear that the grant of the default bail by this Court
shall not prohibit or otherwise prevent the arrest or the re-arrest of the
Applicants on cogent grounds in respect to the subject charge and upon arrest
or re-arrest, the Applicants would be entitled to file application for regular bail
and such application shall be considered on its merits. This Court would
further like to make it clear that this will not impact on the arrest of the
Applicants, in any other case.
13. Before concluding, this Court would like to observe the conduct of the
Investigating Officer as well as the Officer In Charge of Gauripur Police Station
on the basis of the submission made by the Additional P.P. This Court had on
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16/9/2022 in Bail Application No. 2166/2022 and on 31/10/2022 in Bail
Application No. 2645/2022 had rejected the bail applications of the Applicants.
Thereupon this 3rd application has been filed on 16/11/2022. On 18/11/2022
this Court called for the updated case diary on 7/12/2022. On 7/12/2022 the
learned Additional Public Prosecutor sought for time and this Court directed
the matter to be listed on 14/12/2022. However, on 14/12/2022 the counsel
for the Applicants sought for accommodation but Mr. K. K. Paresar, the learned
Additional P.P. has submitted that he has got the case diary. This Court
accordingly fixed the matter today and as no charge-sheet was submitted till
then, this Court directed the learned Additional P.P. to return the case diary
forthwith and get the updated case diary on 22/12/2022. The order dated
14/12/2022 is quoted herein below :-
"14.12.2022
Heard Mr. D. Bora, the learned counsel appearing on behalf of the petitioners and Mr.
K. K. Parasar, the learned Additional P.P. appearing on behalf of the State of Assam.
Mr. D. Bora, the learned counsel appearing on behalf of the petitioner seeks an
accommodation.
Mr. K. K. Parasar, the learned Additional P.P. submits that he has got the case diary.
Let the matter be listed again on 22.12.2022.
The learned Additional P.P. is directed to return the case diary forthwith and get the
updated case diary on 22.12.2022."
14. It is submitted by the Additional P.P. that he duly intimated the Officer in
Charge of Gauripur Police Station over phone to take back the case diary on
14.12.2022 and again on 15/12/2022 he had intimated by way of signal and
today also the Addl. P.P. had asked the Officer in Charge to give instructions as
regards steps to be taken in terms of the proviso to Section 36A (4) of the
NDPS Act. However, the Officer-in-charge of the Gauripur Police Station as
submitted by the Additional P.P. did not give any importance to the said
communications so made by the Additional Public Prosecutor.
15. This is a case registered under Section 22(c) of the NDPS Act, 1985
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which pertains to commercial quantity of narcotic drugs. It surprises this Court
the manner in which the investigation of the said case is being carried out
resulting in a default bail which this Court is compelled to grant in view of the
statutory provisions.
16. The Director General of Police, Assam as well as the Home Secretary to
the Government of Assam shall look into the said aspect. A copy of the instant
order be furnished to the learned Senior Government Advocate for due
intimation.
17. The bail application stands allowed subject to the observations and
directions made in para 12.
JUDGE
Comparing Assistant
