Karnataka High Court
Sri Nitin vs State Of Karnataka on 30 June, 2021
Author: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30th DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.4061 of 2021
BETWEEN
SRI NITIN
S/O. SRI PURUSHOTHAM,
AGED ABOUT 25 YEARS,
RESIDENT OF No.24,
13TH MAIN, VIJAYANAGAR,
BENGALURU - 560 040.
...PETITIONER
(BY SRI Y.R. SADASIVA REDDY, SR. ADVOCATE a/w
SRI CHANDRASHEKAR P., ADVOCATE)
AND
STATE OF KARNATAKA
THROUGH VIJAYANAGAR POLICE STATION,
BENGALURU,
REPRESENTED BY THE PUBLIC PROSECUTOR,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
READ WITH SECTION 167(2) OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CRIME No.240/2020 REGISTERED BY VIJAYANAGARA POLICE
STATION, BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 8(c) AND 22(c) OF THE NDPS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
through video conferencing THIS DAY, THE COURT MADE THE
FOLLOWING:
2
ORDER
This petition is filed by the petitioner-accused under
Section 439 read with 167(2) of Cr.P.C. for default bail in
Crime No.240/2020 registered by the Vijayanagar Police
Station for the offences punishable under Sections 8(c) and
22(c) of Narcotic Drugs and Psychotropic Substances Act,
1985 (for short 'NDPS' Act).
2. Heard the arguments of Sri Y.R. Sadasiva Reddy,
learned Senior counsel along with Sri Chandrashekar.P,
learned counsel appearing for the petitioner and learned High
Court Government Pleader for the respondent-State.
3. The case of the prosecution is that a complaint came to
be filed by the Vijayanagar Police on 23.10.2020 alleging that
the petitioner was found in possession of MDMA Crystals and
Ecstasy Tablets having purchased the same through Post
from Netherland, Poland, Germany and other places for
selling the same to his clients and college students.
Therefore, the petitioner was arrested and remanded to
judicial custody. Hence, he filed a bail petition in
Crl.P.7498/2020 before this Court, which came to be rejected
on 10.03.2021. In view of remanding the accused to the
custody on 24.10.2020, the Investigating Agency is required
to submit the final report within 180 days as per the Section
36(A)(4) of the NDPS Act. But, the Investigating Agency
failed to file the charge sheet within 180 days, but filed an
application under Section 36(A)(4) of the NDPS Act for
extension of time for the purpose of receiving the FSL
Report. The application of the Investigating Agency was
pending and in the meanwhile, an application under Section
167(2) of Cr.P.C. for default bail came to be filed. The Trial
Court vide order dated 17.05.2021 allowed the application of
the Public Prosecutor filed under Section 36(A)(4) of the
NDPS Act seeking extension of time in filing the charge sheet
and rejected the bail application under Section 167 of Cr.P.C.
Hence, the petitioner is before this Court.
4. Learned Senior counsel appearing for the petitioner
relied upon the judgment of the Hon'ble Supreme Court in
the case of Sanjay Kumar Kedia @ Sanjay Kedia vs. The
Intelligence Officer, Narcotic Control Bureau and
another reported in (2009)17 SCC 631 and M. Ravindran
vs. The Intelligence Officer, Directorate of Revenue
Intelligence in Criminal Appeal No.699/2020 on
26.10.2020 and the judgment of a co-ordinate Bench of this
Court in Crl.P.No.6322/2020, disposed on 17.12.2020.
5. On perusal of the record, the point that arises for
consideration is as follows:
"Whether the petitioner is entitled for bail under
Section 167(2) of Cr.P.C. in view of non-filing of
the charge sheet within 180 days and the Trial
Court illegally extending time as per Section
36(A)(4) of NDPS Act?"
6. The material on record goes to show that the petitioner
was arrested on 23.10.2020 and remanded to judicial
custody on 24.10.2020. On a careful perusal of the remand,
the custody of the petitioner is as follows;
October - 08 days;
November - 30 days;
December - 31 days;
January - 31 days;
February - 28 days;
March - 31 days
April - 21 days.
Total - 180 days.
Admittedly, the expiry of the custody falls on 21.04.2021.
Though the Investigating Agency filed an application through
the Public Prosecutor under Section 36(A)(4) of NDPS Act on
02.04.2021, but the same was not considered by the Trial
Court and the time was not extended prior to 21.04.2021
when 180 days expires. In the meanwhile, the petitioner has
moved an application under Section 167(2) of Cr.P.C. on
30.04.2021, but the Trial Court for the reasons best known
it, allowed the application filed by the Public Prosecutor only
on 17.05.2021 and rejecting the bail petition under Section
167(2) of Cr.P.C. Though the Court has power to extend the
time under Section 36(A)(4) of NDPS Act beyond 180 days,
as per the criteria, on the report of the Public Prosecutor
indicating the progress of the investigation and for the
specific reason, the detention of the accused can be beyond
180 days. But except waiting for the report of the Forensic
Science Laboratory (FSL), there is no specific reason of
investigation to seek extension of time for filing the charge
sheet. That apart, the Trial Court has considered the
application and passed the order only on 17.05.2021 by
extending the time. Nevertheless, the period from
22.04.2021 till 17.052021 amounts to illegal detention by the
Court without passing the order on the application filed by
the Public Prosecutor for extension of time. It cannot be said
that once the application is allowed, it refers to the
retrospective effect of detaining the accused in custody.
Therefore, I am of the view that without expressing any
opinion on the merits of the case and in view of the
guidelines issued in the case of Ravindran and in Sanjay
Kumar Kedia (supra) and a co-ordinate Bench of this Court
has granted bail in Crl.P.No.4398/2020 c/w 4522/2020 on
05.10.2020 and in Crl.P.No.6322/2020 on 17.12.2020, this
petitioner is also entitled for default bail under Section
167(2) of Cr.P.C. in view of non-filing of the charge sheet
within 180 days and also not assigning any reason for
extension of time and passing of the order beyond the
detention period of 180 days. Hence, the following:
Order
Criminal Petition is allowed.
The Trial Court is directed to release the petitioner-
accused on bail in Crime No.240/2020 registered by the
Vijayanagar Police Station for the offences punishable under
Sections 8(c) and 22(c) of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short 'NDPS' Act), subject to the
following conditions:-
i) Petitioner shall execute a personal bond for
a sum of Rs.2,00,000/- (Rupees Two Lakhs
only) with two sureties for the likesum to
the satisfaction of the Trial Court.
ii) Petitioner shall not indulge in similar
offences.
iii) Petitioner shall not tamper with the
prosecution witnesses directly or indirectly.
iii) Petitioner shall appear before the
Investigating Officer as and when called
for, for further investigation..
iv) Petitioner shall not leave the jurisdiction of
this Court without prior permission.
Sd/-
JUDGE
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