Gauhati High Court

Thiyagarajan M vs Union Of India on 5 February, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

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GAHC010216642024




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

                               Case No. : Bail Appln./3362/2024

            THIYAGARAJAN M
            S/O MUTHU IRULAPPAN, R/O A/B 26, GAYATHRI STREET, NEAR LOVELY
            FOUNDATION, P.S. MINJUR, DIST. TIRUVALLUR, TAMIL NADU, PIN-601203



            VERSUS

            UNION OF INDIA
            REPRESENTED BY NARCOTICS CONTROL BUREAU THROUGH
            INTELLIGENCE OFFICER, GUWAHATI ZONAL UNIT, GUWAHATI, ASSAM



Advocate for the Petitioner   : MR. M BISWAS, S K DAS,A GHOSAL,J SINGPHO

Advocate for the Respondent : SC, NCB,
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                               BEFORE
                  HONOURABLE MRS. JUSTICE MALASRI NANDI

                                    ORDER

05.02.2025

Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned standing counsel NCB.

2. By filing this application under section 439 Cr.PC, the petitioner, namely, Thiyagarajan M has prayed for bail in connection with NDPS case no. 131/2021 under section 22(c)/29 of NDPS Act, pending in the court of learned Additional District and Session Judge, Kamrup(M).

3. The brief fact of the case is that based on secret information regarding transportation of large quantity of Methamphetamine tablets, the NCB team had intercepted a black coloured Ford car on 06.03.2021 at Naziraghat toll plaza carrying 10.276 kg of Methamphetamine. The said recovery was made from two persons namely, Safiquar Rahman and Krishna Mali. Accordingly, a case was registered vide NCB crime case no. 06/2021 and both the aforesaid persons were arrested.

4. It was urged by learned counsel for the petitioner that the present petitioner is no way connected with the alleged offence. The petitioner is a businessman by profession residing at Guwahati. His brother Mariyappan, who is a resident of Tamil Nadu, asked the petitioner to collect consignment of some packets from some unknown persons. He was not aware of the fact that those packets contained some narcotic substance. He was told by his brother that the packets contained medicine only. And he was under

bonafide belief that those packets contained some medicines. Accordingly, learned counsel for the petitioner has submitted that there is nothing in the Page No.# 3/13

record to show that the petitioner was in conscious possession of the seized contraband. Nothing was recovered from the possession of the petitioner and he was arrested solely on the basis of the statement of the co-accused Krishna Mahapatra Mali u/s. 67 of NDPS Act which is inadmissible in law.

5. Learned counsel for the petitioner also contended that the accused petitioner was arrested on 08.03.2021 i.e. he has been languishing in judicial custody for last 4 years. Though the charge was framed on 07.04.2022 but out of 15 witnesses only 2 witnesses have been examined. If the trial continues in this manner, then it would take another 5 more years for completion of the trial and by that time minimum punishment prescribed under the NDPS Act would be over. It is further submitted that it is the trite law that prolonged incarceration of under trial and inordinate delay in trial infringes the fundamental rights of the accused guaranteed under Article 21 of the constitution of India.

6. By referring the judgment of Satender Kumar Antil Vs. CBI reported in (2022) volume 10 SCC 51, learned counsel has pointed out that Hon'ble Supreme Court observed as follows---

"...we do not wish to deal with individual enactment as such special Act has got an objective behind it followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436 A of the code would apply to the special Acts also in the absence of any specific provision. For example, the rigour as provided u/s. 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker adjudication ought to be. After all in this type of cases the number of witnesses should be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the direction of this court to expedite the process and also Page No.# 4/13

a stricter compliance of section 309 of the Code".

7. Learned counsel for the petitioner also has relied on another case law vide Rabi Prakash Vs. State of Orissa, reported in (2023) O Supreme (SC) 707, wherein the Apex court held as follows ----------

"Prolonged incarceration generally militates against the most precious fundamental rights guaranteed under article 21 of the Constitution of India and in such a situation the conditional liberty must override the statutory embargo created u/s. 37(1) (b) (ii) of the NDPS Act..."

8. Also in Deeraj Kumar Shukla Vs. State of U.P vide SLP(Crl) no. 6690/2022, Hon'ble Apex court held that -------

"...it is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for last two and half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charge has been framed".

9. Another point raised by learned counsel for the petitioner is that the petitioner was arrested and produced before the learned Sessions Judge, Guwahati on 08.03.2021 and was remanded to judicial custody on the same day. Thus, his statutory period of detention of 180 days for the purpose of investigation as per Section 36A of the NDPS Act was over on 03.09.2021 and hence, on 04.09.2021 the petitioner would have been entitled for default bail. But in the instant case, the offence report dated 01.09.2021 was placed for the first time before the concerned trial judge on 07.09.2021 which is evident from the order dated 07.09.2021 passed by the learned Sessions Judge, Kamrup (Metro) and the trial court directed registration of the NDPS case after taking cognizance.

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10. According to learned counsel for the petitioner, the petitioner was

never informed of his indefeasible right of default bail either on 4 th

September 2021 or 5th September 2021 or 6th September 2021.Therefore, the petitioner is entitled for default bail as the offence report for the purpose of section 173(2) Cr.PC was filed beyond 180 days.

In support of his submission, learned counsel for the petitioner has placed reliance on the following case laws-

a) (2017)15 SCC 67 (Rakesh Kumar Paul Vs. State of Assam).

b) (2022) 5 GLT 405 (Samsur Noor @Samsul Noor Vs. State of Assam).

11. Per Contra, learned standing counsel NCB has submitted that the charge-sheet has been laid on 01.09.2021 within the stipulated period of 180 days before Sessions Judge, Kamrup along with all the relevant documents as per provisions of section 173(2) Cr.PC. As such, there is no question of grant of default bail to the petitioner. It is a settled position of law that right of default bail u/s. 167(2) Cr.PC is not only statutory right but it is a right that flows from article 21 of the Constitution of India. It is indefeasible rights, nonetheless enforceable only prior to filing of charge-

sheet and does not survive or remain enforceable on charge-sheet being filed if already not availed of. Once charge-sheet has been filed, question on grant of bail has to be considered and decided only with reference to merits of the case. Learned Counsel for the NCB has relied on the following case laws--

a) (2024) O Supreme (SC) 72 (CBI Vs. Kapil Wadhawan).

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b) (2022) O Supreme (SC) 186 (Amritlal Vs. Shantilal Soni and others).

12. Having heard the learned counsel for the parties and on perusal of the trial court record, it reveals that the learned counsel for the petitioner has prayed for bail of the petitioner mainly on two grounds i.e. default bail and prolonged incarceration.

13. Coming to the question of default bail, the settled proposition of law as enumerated in the case of Kapil Wadhawan (supra), it was held as follows----

"...There cannot be any disagreement with the well settled legal position with the rights of default bail u/s. 167(2) Cr.PC is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable only prior to the filing of the challan or the charge-sheet and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to the accused after the filing of the challan. The constitution Bench in Sanjay Dutt Vs. State through CBI, Bombay, reported in (1994) 5 SCC 410, the Court has also taken the similar view".

14. Learned counsel for the petitioner by referring the judgment of this court vide Samsul Noor (Supra) has pointed out that though the charge- sheet has been received by the office of the Sessions Judge on 01.09.2021 but cognizance was taken by the trial Court on 07.09.2021 i.e. after statutory period of 180 days. As such, the petitioner is entitled for default bail. In the judgment of Samsul Noor (supra), it was held as follows--

" 30. In the backdrop of the above, let this Court take up Page No.# 7/13

the question which arises for consideration before this court as to whether the submission of the charge-sheet to the office would be sufficient compliance to section 173(2) of the code read with Rule 38 and 69 of the Assam Police Manual, part (iv). As already stated hereinabove, section 173(2)(i) mandates that the officer in charge of the police station as soon as the investigation is complete shall forward to a Magistrate empowered to take cognizance of offence on a police report in the form prescribed by the State government".

15. The learned co-ordinate Bench has answered the same in para 37, 38 & 39 of the judgment of Samsul Noor (Supra) which are reproduced as follows----

"37. This aspect of the matter can be looked from another angle. The judgment of the supreme court in the case of M. Ravindran (Supra) and the relevant paragraphs quoted herein above clearly shows that section 167(2) of the code is integrally linked with article 21 of the Constitution of India and an obligation is cast upon state under Article 21 of the Constitution of India to follow a fair, just and reasonable procedure prior to depriving any person of his personal liberty. This valuable right under section 167(2) of the code cannot be made nugatory at the hands of the office of the Magistrate/ the court. It is also relevant herein to take note of the fact that allowing the office of the Magistrate/the court to receive on behalf of the Magistrate /the court may lead to manipulations which would affect the right of the prosecution as well as the accused as the case may be. It is, therefore, the Magistrate/the court competent to take cognizance of the offence who is required under law to put the initial with date and the seal of the court on the register maintained in terms with the Assam Police Manual so that there is no scope of any manipulation.

38. In view of the above, this court is of the opinion that submission of the charge-sheet before the office of the Magistrate/the Court would not be Page No.# 8/13

sufficient compliance with section 173(2) of the code r/w Rule 38 and 69 of the Assam Police Manual Part

(iv) and it is only when the Magistrate/the court competent to take cognizance of the offence, puts the initials in the charge-sheet as well as in the register maintained with date and seal of the Magistrate/the court, it would be that date on which the charge-

sheet has been deemed to have been submitted to the Magistrate/the court.

39. In the instant case, it is seen that it was only on 07.06.2022 when the charge-sheet in question was placed before the court and there is no materials available wherein the special Judge, (Karimganj) had put an endorsement with initial and the date as regards the date of receipt of the charge-sheet. Consequently, therefore, 07.06.2022 would be the date on which it would be deemed that the charge-

sheet was submitted before Special Judge, Karimganj in the instant case..."

16. But Hon'ble Supreme Court in Suresh Kumar Bhikamchand Vs. State of Maharastra reported in (2013) 3 SCC 77 has observed that the accused had sought default bail u/s. 167(2) on the ground that though the charge-sheet was filed within stipulated time, the cognizance was not taken by the court for want of sanction to prosecute the accused. The court dispelling the claim of the accused and held as follows-

"17. In our view, ground of sanction is nowhere contemplated u/s. 167 CrPc. What the said section contemplate is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions related to remand of an accused, first during the stage of investigation and thereafter, after cognizance is taken indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with Page No.# 9/13

death, imprisonment for life or imprisonment for not less than 10 years within 90 days. In the event, investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case[(1975) 2 SCC 220:1975 SCC(Cri) 484] and in Sanjay Dutt case[(1994) 5 SCC 410: SCC (Cri) 1433] were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) CrPc and an application having been made for grant of bail prior to the filing of the charge- sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge-sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits.

18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2) (a) (ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Cr.PC is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 Cr.PC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 Cr.PC. The scheme of Cr.PC is such that once the investigation stage is completed, the court Page No.# 10/13

proceeds to the next stage, which is taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Cr.PC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentences. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation , the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Cr.PC. The two stages are different, but one follows the other so as to maintain a continuity of the accused with a court."

17. In Serious Fraud Investigation Office v/s Rahul Modi and others 2022, SCC Online (SC) 153, the Hon'ble Supreme Court following Suresh Kumar Bhikamchand Jain (Supra) observed as follows-

"11. It is clear from the judgment of this Court in Bhikamchand Jain (Supra) that filing of a charge-sheet is sufficient compliance with the provision of Section 167 Cr.PC and that an accused cannot demand release on default bail under Section 167 (2) on the ground that cognizance has not been taken before the expiry of 60 days. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the Court trying the offence, which assumes custody of the Page No.# 11/13

accused for the purpose of remand after cognizance is taken. The conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post cognizance stage, is not correct in the judgment of this Court in Bhikamchand Jain (Supra)."

18. In view of the aforesaid legal proposition, this Court is of the opinion that in the case in hand admittedly, charge-sheet having been filed against the accused petitioner on 01.09.2021 within the stipulated period of 180 days. As such the accused petitioner cannot demand release on default bail u/s. 167 (2) of Cr.PC on the ground that cognizance has not been taken before the expiry of 180 days vide Bhikamchand Jain (Supra). Hence, the submission of the learned counsel for the petitioner on default bail is of no consequence.

19. Regarding the submission on prolonged incarceration, learned Standing Counsel, NCB has pointed out that the NDPS Act came into existence to curb the menace of Narcotic Drugs in the society. The Act was amended subsequently and Section 37 of the Act was inserted in the year 1989 which provides restrictions on bail of those offenders who indulged in serious offences like trafficking of Narcotic Drugs. It is further submitted that the ground of long incarceration and applicability of Article 21 of the Constitution of India cannot be a ground for seeking bail in heinous crime like trafficking of drugs. Article 21 of the Constitution of India guarantees personal liberty to everyone. In criminal law, a person accused of an offence which is non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is Page No.# 12/13

authorized by law. Learned NCB Counsel also added that when the seriousness of an offence is such, the mere fact that the petitioner is in jail for however long should not be the concern of the Court and in heinous crime, length of tenure in custody may not be only factor of consideration for the grant of bail.

20. Learned counsel for the NCB has referred some dates i.e. 02.09.2023, 05.10.2023, 02.11.2023 and 04.01.2024. Though some of the witnesses had come on such dates but they were not examined due to adjournment taken by the counsel for the accused persons. According to the learned counsel for the NCB, it is true that till date three witnesses are examined in connection with this case but the delay in trial which is beyond the control of either prosecution, accused and his counsel or the trial court.

21. Admittedly, three witnesses are examined by the trial court till date. It is also not in dispute that the accused petitioner is in judicial custody for more than 3 years and the prosecution has failed to complete the trial. It is also apparent that this case deals with the commission of offence regarding trafficking commercial quantity of contraband items. As per trial court record, the co-accused Ganesh was the receiver of the seized commercial quantity of Narcotic Drugs for which he paid the money to the account of another co-accused Ramesh and Ramesh withdrew the said money and gave it to co-accused Thiyagarajan M, the present petitioner. Under such backdrop, the rigours of Section 37 of NDPS Act will come into play.

22. Section 37 (b) (ii) of the NDPS Act provides that when the public prosecutor opposes the bail in respect of the offence u/s 19 or Section 24 or Section 27 (A) of the NDPS Act as well as the offence involving commercial Page No.# 13/13

quantity, the Court can grant bail only when it is satisfied that there is reasonable ground for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is no doubt true that in order to have a satisfaction that there is no reasonable ground for believing that the accused is not guilty of committing the offence, Court is not required to enter into the detailed appreciation of evidence, nor the Court is required to record a finding of not guilty. What the law requires is that there must be material something more than prima- facie, from which a reasonable person can believe that the accused has not committed the offence.

23. From the materials on record, it is apparent that the contraband seized in the instant case was of commercial quantity and evidently the petitioner had received the money for trafficking of such contraband.

24. In view of the materials on record, this Court does not find any reasonable ground to believe at this stage that the petitioner was not involved in the offence as alleged and as such the limitation u/s 37 of the NDPS Act would apply in the instant case. Hence, prayer for bail is rejected.

25. Accordingly, this bail application stands disposed of.

JUDGE

Comparing Assistant