Md.Ali Husen Khan vs State Of Orissa
2021 Latest Caselaw 8136 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK


                                   CRLREV No.100 of 2021


            Md.Ali Husen Khan                         ....         Petitioner
                                                     Mr.S.K.Rout, Advocate
                                         -versus-
            State of Orissa                           ....     Opposite Party
                                                      Mr.S.S.Kanungo, AGA

                        CORAM:
                        JUSTICE B. P. ROUTRAY


                                       ORDER

4.8.2021

Order No.

04. 1. The Petitioner, Md.Ali Husen Khan has prayed for his release on default bail under Section 36-A(4) of the N.D.P.S.Act read with Section 167(2) of the Cr.P.C.

2. The facts of the case are that the Petitioner is in custody in connection with T.R.Case No.12 of 2020 arising out of Machakund Police Station Case No.17 dated 9th February, 2020 for commission of offences under Section 20(b)(ii)(C)/29 of the N.D.P.S.Act. As per the allegations, the Petitioner was found in possession of contraband ganja weighing K125.500gm. while transporting the same in an Indigo vehicle. By order dated 10th February, 2020 of the learned Additional Sessions Judge-cum- Special Judge, Koraput, he has been taken to custody on production by the police. The investigation continued and 180 days completed on 7th August, 2020. Before the said date on 5th

August, 2020 a petition was filed by the I.O. praying for extension of time for completion of investigation and the learned Addl. Sessions Judge-cum-Special Judge on the same day allowed the prayer of the I.O. The order dated 5th August, 2020 reads as under:

"The case record is put up today as the I.O./I.I.C. of Machkund P.S. has made a prayer, though the Special P.P., Koraput, for grant of two months time to complete the investigation of the case and for submission of the charge-sheet on the grounds stated therein. Perused the petition filed through the Special P.P. u/s.36(A)(4) of N.D.P.S.Act. I also perused the prayer of the I.I.C., case diary and other connected documents (33 sheets) as submitted by the I.I.C. of Machkund P.S. It is specifically mentioned that the identification and arrest of other accused persons namely Suresh Khilo of Bangurpada and Babu of Panposh is yet to be made and the ownership of the offending vehicle is also to be verified from the concerned authority. Further, he has stated that the involvement of other accused persons is to be ascertained. Under the above circumstances, the I.O./I.I.C. prayed to grant two months time for completion of investigation of the case and for submission of charge-sheet.

From the materials available on record, I am of the opinion that this is a fit case where the period of investigation of this case should be extended beyond 180 days. Accordingly, the prayer of the I.O./I.I.C. of Machkund P.S. is allowed.

Send an extract of this order to the I.I.C., Machkund P.S., through Special P.P., Koraput, for information and necessary action.

Put up the case record on the date fixed."

3. Thereafter, the Petitioner on 27th August, 2020 filed an application before the learned Additional Sessions Judge-cum- Special Judge praying to release him on default bail in terms of provisions contained in Section 36-A(4) of the N.D.P.S.Act read

with Section 167(2) of the Cr.P.C. as he was neither served a copy of the extension petition nor was given any opportunity of being heard before granting extension of time. The same was rejected by the learned Special Judge by order dated 27th August, 2020 on the ground that, since the Court has already allowed the prayer of the I.O. granting extension of time, it lacks jurisdiction to entertain said prayer of the accused-Petitioner.

4. Subsequently chargsheet was submitted on 18th September, 2020 for commission of offence under Section 20(b)(ii)(C) of the N.D.P.S.Act and cognizance of the offence has been taken on 23rd September, 2020.

5. The Petitioner contends before this Court that remanding him to custody beyond 7th August, 2020 is against the principles of law enumerated in 167(2) of the Cr.P.C. It is further contended that without giving an opportunity of hearing to the accused-Petitioner and even without intimating him of his right of release on default bail, grant of extension of time to complete the investigation beyond 180 days period is gross violation of law and right accrued in favour of the Petitioner for default bail. Thus, the order of the learned Sessions Judge dated 5th August, 2020 and subsequent remand of the Petitioner in custody is illegal. It is thus prayed that the Petitioner may be released on bail as a matter of right protected in the provisions contained in Section 167(2) of the Cr.P.C. read with Section 36-A(4) of the N.D.P.S.Act. In this regard, the Petitioner rely on the decision of this Court reported in (2018)71 OCR-31 (Lambodar Bag Vrs. State of Orissa) and the judgment in CRLMC No.1358 of 2020,

disposed of on 8.2.2021 (Rohiteswar Meher Vrs. State of Odisha).

6. It is the settled law that right guaranteed under Section 167(2) to the accused is indefeasible. This Court, in the case of Labmbodar Bag (supra) after taking into consideration the principles decided in the case of Hitendra Vishnu Thakur Vrs. State of Maharashtra, reported in A.I.R. 1994 SC 2623 and various other decisions, have answered on five points relating to release of an accused in terms of Section 36-A (4) of the N.D.P.S. Act read with Section 167 (2) of the Cr.P.C. The answer is in affirmative in favour of the accused for his enlargement on bail for non-completion of investigation within the prescribed period of 180 days on different contingencies relating to extension of such period. It is observed inter alia by this Court at para-8 as follows:

"In the case in hand, when the petition was filed by the learned Addl. Special Public Prosecutor on 22.07.2017 for extending the period of investigation, no notice was issued to the petitioners on such petition to have their say in the matter. Even the filing of the petition was not brought to the notice of the counsels representing the petitioners. Since while considering such a petition, principles of natural justice was not followed and the petitioners were not given opportunity to oppose the extension on any legitimate and legal grounds available to them and even the trial Judge has not brought filing of such a petition to the notice of the counsels representing the petitioners, in view of the ratio laid down in case of Hitendra Vishnu Thakur (supra), I am of the view that the learned Trial Judge has committed illegality in granting extension for a further period of sixty days for completing investigation as per order dated 22.07.2017 which is against fair play in action and in my humble opinion, it has caused serious prejudice to the petitioners. Even though Sub-section (4) of Section 36-A of the N.D.P.S. Act does not specifically provide for issuance of notice to the accused on the report of the Public Prosecutor before granting extension but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice 12 between the parties and since

there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice. Moreover, report has to be filed by the Public Prosecutor in advance and not on the last day, so that on being noticed, the accused gets fair opportunity to have his say and oppose the extension sought for by the prosecution."

7. In the said decision this Court has further held that, before granting extension of time to the prosecution, the obligation casts upon the Court to inform the accused of his right for release on bail.

8. It is also held in the case of Lambodar Bag (supra) that, even the accused has not applied for his release on default bail, still his entitlement for bail on account of non- submission of prosecution report would not be affected. The relevant observations of this Court are reproduced below:

"xx xx xx

Keeping in view that ratio laid down in the aforesaid decisions and coming to the case in hand, I am of the humble view that even though the petitioners have not applied for bail during the default period when prosecution report was not filed even after extended period for completion of investigation as was 28 granted by the learned Trial Judge but since the learned trial Judge has not informed the petitioners of their right being released on bail on account of non-submission of prosecution report, no fault can be found with the petitioners for not making such application for bail during the default period. Had the learned trial Judge informed the petitioners of their right and the petitioners on being so informed, failed to file an application for release on bail on account of the default by the investigating agency in the completion of investigation within the extended period, after the prosecution report is filed, they would have lost their valuable right. In the factual scenario, the petitioners cannot be stated to have voluntarily given up their indefeasible right for default bail.

9. Even though the petitioners have not applied for bail before the learned Trial Judge on the ground of not being noticed to have their say on the invalid petition filed by the Addl. Public Prosecutor on 22.07.2017 but on some

other grounds, they are not debarred from taking such ground before this Court. As held in case of Rakesh Kumar Paul, in the matter of personal liberty, the Court should not be too technical and must lean in favour of personal liberty. An application for bail in the High Court is not an application for review of the order of the Court below. 29 Grounds not taken in the Court below can be taken in the bail petition in the higher Court and even non-taking of grounds in the bail petition will not deprive the counsel for the accused in raising such grounds during hearing of the bail application. Even if a ground for grant of bail is not taken in the bail petition and not argued by the counsel for the accused, the Court is not deprived of releasing the accused on bail on such ground if it is legally sustainable. Strict rules of pleadings are not applicable in bail petition."

9. In the present cases, the Petitioner is inside custody till date and it is clear from order dated 5th August, 2020 of the learned Additional Sessions Judge-Cum-Special Judge that the accused-Petitioner has not been given any opportunity of hearing to lead his legitimate objection nor he has been informed of his right on default bail before granting extension of time to the prosecution for completion of investigation.

10. Thus, in consideration of all the facts, the order dated 5th August, 2020 of the learned Additional Sessions Judge-Cum- Special Judge to the extent granting extension to the prosecution for completion of investigation is set aside. Resultantly, it is directed to release the Petitioner on bail in the aforesaid case on furnishing bail bond of Rs.50,000/- (fifty thousand) with two sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further condition that one of such surety shall be his relative and he shall not be involved in any other offence while on bail and that, he shall co-operate for expeditious conclusion of trial. Further, the court below is at liberty to fix any other condition in addition to the above as it deems fit and proper.

It is further made clear that violation of any such condition shall entail cancellation of bail.

11. The petition is accordingly allowed.

12. An urgent certified copy of this order be issued as per Rules.

( B.P. Routray) Judge C.R. Biswal