Gauhati High Court
Vinod Bijarnia vs Narcotics Control Bureau on 30 July, 2022
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GAHC010124552022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1506/2022
VINOD BIJARNIA
S/O SRI RAM SINGH
R/O VILL- NETRAMPURA
P.O. JAKHOD, P.S. RAIGARH
DIST. JHUNJHUNU, RAJASTHAN
VERSUS
NARCOTICS CONTROL BUREAU
REP. BY SC, NCB
Advocate for the Petitioner : MR P KATAKI
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 30-07-2022
Heard Mr. P. Kataki, learned counsel assisted by Mr. U. S. Borgohain, learned
counsel for the petitioner. Also heard Ms. P. Das, learned counsel appearing on
behalf of Mr. S. C. Keyal, learned standing counsel for the NCB.
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2. This bail application has been filed by the petitioner praying for bail under
Section 439 Cr.P.C. This petitioner was arrested on 17.11.2021 and since then he is
in custody.
The facts in the present case are as under:-
"A seizure was made by the NCB of 9975 bottles of Codeine based
Phensedyl Cough Syrup from Amingaon on 30.03.2021 by NCB,
Guwahati Zonal Unit, Guwahati from a truck bearing registration No. UP
22T 8859. The seized goods were deposited in the NCB, Guwahati
Godown on 30.03.2021 and the samples, thereof, were sent for FSL
report. Cash amount of Rs. 3030/- was also recovered. In this
connection initially two persons, namely, 1. Ayodhya Prasad and 2.
Mahendra Singh were arrested from the truck.
During the investigation, the arrested persons revealed the names of
the petitioner in connection with the seized goods pursuant to which
notice under Section 67 (c) was issued to the petitioner. The petitioner
was thereafter also arrested and has been in custody since
17.11.2021".
3. Prior to his arrest, the petitioner had earlier filed an anticipatory bail petition
before this Court being AB No. 2051/2021which was rejected by this Court vide
order dated 03.09.2021. Thereafter, the petitioner filed a bail application before the
Special Judge, Kamrup, Amingaon which was rejected by the order dated
22.04.2022. Subsequently, again on 27.05.2022, the petitioner filed another bail
petition seeking bail upon completion of statutory period for judicial custody of 180
days and that no charge-sheet was filed by the NCB authorities. The said bail
petition was also rejected vide order dated 27.05.2022.
4. The learned counsel for the petitioner submits that the petitioner is entitled
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to be released on the completion of the statutory period of detention of 180 days
as specified as per provisions of 167(2) of Cr.P.C. read with provision of NDPS Act.
5. The learned counsel for the petitioner submits that on 27.05.2022, the
petitioner had already completed 190 days and till that date no charge-sheet was
filed. As such, the statutory right for default bail had accrued to the petitioner.
Consequently, since no charge-sheet has been filed by the NCB, the petitioner is
entitled to the default bail as prayed for.
6. Ms. P. Das, learned counsel for the NCB disputes the contentions and submits
that the charge-sheet was filed on 27.01.2022 and thereafter on 27.05.2022 a
supplementary charge-sheet has also been filed. Presently, the matter is at the
stage of appearance and the matter is fixed again on 12.08.2022 before the Special
Judge, Amingaon.
7. The learned counsel for the NCB disputes the submission made by the
learned counsel for the petitioner that the benefit of default bail had accrued to the
petitioner upon failure of the NCB to file charge-sheet as the supplementary
charge-sheet has been filed as far back as 27.01.2022.
8. The learned counsels for the parties have been heard and the pleadings have
been duly perused. It is seen that the petitioner was arrested on 17.11.2021. It is
submitted that the charge-sheet in the matter was filed during the month of
September, 2021 which was prior to the arrest of the petitioner and that the
petitioner was not named in that charge-sheet. Pursuant to the arrest of the
petitioner the NCB filed a supplementary charge-sheet naming the petitioner and
which is stated to have been filed as far back as 27.01.2022. In the order of the
Special Judge dated 27.05.2022 it is recorded that the charge-sheet has been filed
before the Court on 27.01.2022, but as it was an off date the same was not
mentioned in the order sheet of this Court in the earlier order rejecting the bail of
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the petitioner by the Special Court i.e. 22.04.2022. The learned counsel for the
petitioner has raised objection that although the charge-sheet was stated to have
been filed on 27.01.2022 it was not put up before the Court. Consequently, it
cannot be stated that the charge-sheet was filed within the statutory period of 180
days from the date of arrest of the petitioner. The pleadings available before the
Court does not indicate as to why the charge-sheet was not put up until
27.05.2022 if the same was filed as far back as 27.01.2022 as claimed by the NCB.
9. Considering the fact that the petitioner has been in custody since 17.11.2021
and that he has prayed for default bail on completion of the statutory period of
detention which is stated to have been completed on 27.05.2022, this Court is of
the view that interest of justice will be served if the matter is disposed of with a
direction that the Special Judge, Amingaon to enquire into the matter to ascertain
as to whether the supplementary charge-sheet had been filed on 27.01.2022 as
claimed by the learned counsel for the NCB and if the same was indeed filed on
27.01.2022, then the reason as to why the same was not brought to the notice of
the Special Judge, Amingaon. The Special Judge, Amingaon will thereafter pass
appropriate order(s) on such petition that may be preferred by the petitioner again
seeking bail/default bail.
10. The petitioner will file appropriate application before the Special Court within
a period of 1(one) week from the date of receipt of this order.
11. The Special Court will thereafter taking into account the facts and
circumstances of the case and the provisions of law including the ratio laid down by
the Apex Court in the recent judgment passed in Narcotics Control Bureau -Vs-
Mohit Aggarwal reported in 2022 SCC OnLine SC 891. The Special Court will
thereafter pass appropriate orders in the matter deciding the question of default
bail as agitated by the petitioner.
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12. The bail petition is accordingly disposed of in terms of the above.
JUDGE
Comparing Assistant
