High Court of Meghalaya

Shri. Heirtami Dkhar vs . State Of Meghalaya on 28 September, 2022

     Serial No. 02
     Regular List


                         HIGH COURT OF MEGHALAYA
                                AT SHILLONG

B.A. No. 14 of 2022
                                                 Date of Decision: 28.09.2022
Shri. Heirtami Dkhar                 Vs.                  State of Meghalaya
Coram:
              Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   : Mr. A. Khan, Adv.
For the Respondent(s)             : Mr. B. Bhattacharjee, AAG with
                                    Mr. A.H. Kharwanlang, GA.



                                  ORDER

1. An FIR dated 07.07.2022 was lodged before the Officer In-Charge

Khliehriat PS, East Jaintia Hills by Shri J. Myrom, MPS, Dy. SP(HQ) East

Jaintia Hills, Khliehriat to the effect that, on information received, the Anti

Narcotic Task Force (ANTF) team intercepted a vehicle coming from

Lumshnong side with two occupants and which vehicle as well as the

occupants was detained by the ANTF team. The occupants were suspected to

be in possession of narcotic drugs and after following due procedure in

accordance with the provisions of law, substance suspected to be contraband,

particularly heroin and 90 Nos. of Nitrazepam tablets were seized from the

two occupants. The two occupants were accordingly arrested and detained in

custody in connection with Khliehriat PS. Case No. 70(07)2022 under Section

21(b)/22(a)/29 NDPS Act.

2. While investigation was conducted by the Investigating Officer

(I/O), the accused/petitioner was in judicial custody. Since the charge sheet

has not yet been filed by the I/O within the stipulated 60 days as per the

provision of Sub-section 2 of Section 167 Cr.PC, the petitioner has approached

the court of the Special Judge (NDPS), Khliehriat with a bail application

seeking enlargement on default bail. However, vide order dated 07.09.2022

the learned Special Judge had rejected the application and as such, the

petitioner has now approached this Court with this instant application under

Section 439 Cr.PC seeking grant of bail.

3. Mr. A. Khan, learned counsel for the petitioner has submitted that

the petitioner was alleged to have committed an offence under Section

21(b)/22(a)/29 of the NDPS Act which, if convicted entails a punishment of

imprisonment which may extend to 10 years and fine which may extend to

rupees one lakh (rupees one lakh) only. In this regard, since the I/O has failed

to file the charge sheet within the stipulated period of 60 days, the petitioner

is therefore entitled to grant of default bail.

4. To support his contention, the learned counsel for the petitioner has

cited the case of Rakesh Kumar Paul v. State of Assam (2017): 15 SCC 67

and has submitted that a three-Judge bench of the Hon'ble Supreme Court

dealing with the issue of mandatory grant of bail as provided under Section

167(2) Cr.PC has maintained that default bail is an indefeasible right of an

accused if the chargesheet is not filed within the stipulated period of 60 or 90

days respectively and in this case, since the accused was detained in custody

beyond the 60 days period without the chargesheet being filed, therefore he is

entitled to be enlarged on default bail.

5. Mr. B. Bhattacharjee, learned AAG in his counter has relied upon

the case of State of Mizoram v. Shri. Sanglian: 2009 SCC Online Gau 152

wherein the Single Bench of the Hon'ble Gauhati High Court dealing with an

exactly similar issue, that is, the issue of grant of default bail for an offence

committed under Section 21(b) of the NDPS Act has held that since the

punishment prescribed under this Section is a sentence for a term which may

extend up to 10 years, therefore the same would be covered by Section

167(2)(a)(i) Cr.PC, which in effect means that default bail can be availed only

if the chargesheet is not filed within 90 days. The case of Rajeev Chaudhary

v. State (NCT) of Delhi: (2001) 5 SCC 34 was relied upon by the Court in

this regard. Hence, the petitioner herein is not entitled to grant of default bail

since the 90 days' period has not expired. It is further submitted that as on

date, the chargesheet has now been filed in the case.

6. This Court has given due consideration to the submission made by

the parties and has also looked into the authorities cited in support of their

respective case. What is required to be determined here is whether the

petitioner would be entitled to the benefit of default bail considering the fact

that the punishment prescribed for the offence alleged against him carries a

penalty of sentence which may extend upto 10 years. If a punishment

prescribed in a statute entails a minimum sentence of 10 years, the courts,

particularly the Apex Court in a catena of judgment is agreed that the

maximum sentence could be either life imprisonment or death or 20 years or

so, which in the context of Section 167(2) Cr.PC would definitely be covered

by clause (i) to proviso (a) of Section 2 thereof.

7. The difficulty lies in the interpretation of the provision where the

word '10 years' appears, particularly when the expression 'less than 10 years'

vis-à-vis 'extend to 10 years' is sought to be distinguished and explained.

8. Before answering the above, it would be noteworthy to recall the

observations made by the Apex Court at para 24 and 25 in the case of Rakesh

Kumar Paul (supra) which reads as follows:

"24. In the context of the word "punishable" occurring in Clause (i) and the meaning attached to this word taken from several dictionaries, this Court held in Bhupinder Singh that where a

minimum and maximum sentence is prescribed, both are imposable depending upon the facts of the case. Therefore, if an offence is punishable with imprisonment that may extend upto or beyond or including 10 years, then the period available for completing investigations would be 90 days before the provision for "default bail" kicks in. It was said in para 15 of the Report: (SSC p. 282)

"15. Where minimum and maximum sentences are prescribed, both are imposable depending on the facts of the cases. It is for the court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence".

25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence "not less than" that sentence provided for. Therefore, the words "not less than" occurring in Clause (i) to proviso (a) of Section 167(2) CrPC (and in other provisions) must be given their natural and obvious meaning, which is to say, not below a minimum threshold and in the case of Section 167 of the CrPC these words must relate to an offence punishable with a minimum of 10 years' imprisonment."

9. In the case of Rajeev Chaudhary (supra) the Apex Court at para 6

has held that:

"6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable within imprisonment for a term "not less than 10 years", the Magistrate is

empowered to authorise the detention of the accused for not more than 90 days. For the rest of the offences, the prescribed period is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained upto a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could be said that minimum sentence could 10 years or more..."

10. However, the Apex Court in the case of Rakesh Kumar Paul (supra)

at para 66 has held as follows:

"66. In the first two categories, the legislature made reference only to the maximum punishment imposable, regardless of the minimum punishment, which may be imposed. Therefore, if a person is charged with an offence, which is punishment with death or life imprisonment, but the minimum imprisonment is less than 10 years, then also the period of 90 days will apply. However, when we look at the third category, the word used by the legislature are "not less than ten years". This obviously means that the punishment should be 10 years or more. This cannot include offences where the maximum punishment is 10 years. It obviously means that the minimum punishment is 10 years or whatever be the maximum punishment.

11. At para 84.3 of the said Rakesh Kumar Paul case, it was held that:

"84.3. In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2) (a) (ii) will apply and the accused will be entitled to grant of "default bail" after 60 days in case charge-sheet is not filed."

12. The above has conveniently answered the query as far as the

expression "less than 10 years' and 'extend to 10 years' is concerned. Viewed

thus, it can be said that since the alleged offence committed by the petitioner

would, if convicted carries a sentence which may extend to 10 years, therefore

as noted above, he is entitled to grant of default bail on the chargesheet not

being filed within the stipulated 60 days period.

13. This petition is accordingly allowed.

14. The trial judge is directed to release the petitioner on default bail on

such terms and conditions as may be reasonably imposed to ensure the

participation of the petitioner in the proceedings.

15. Registry is directed to send back the case diary which was produced

before this Court on being directed.