Suraj Mandal vs State Of Orissa
2021 Latest Caselaw 13021 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

             CRLREV NOs.210, 211 and 212 of 2021

(From the order dated 02.03.2021 passed by the learned Sessions
Judge-cum-Special Judge, Malkangiri in T.R. No.94 of 2020 granting
60 days further time to the Investigating Officer to file charge sheet)


Suraj Mandal                                 ....          Petitioners
(in CRLREV No.210 of 2021)
Pabitra Mandal
(in CRLREV No.211 of 2021)
Dipak Bairagi @ Deepak Bairagi
(in CRLREV No.212 of 2021)

                               -versus-
State of Orissa.                             ....            Opp. Party


Advocates appeared in the case through Hybrid Mode:
For Petitioners            :       Mr. Suryakanta Dwibedi, Adv.

                               -versus-
For Opp. Party                :    Mr. P.K. Maharaj, ASC
                                   Mr. M.K. Mohanty, ASC


    CORAM:
         JUSTICE S.K. PANIGRAHI

               DATE OF HEARING:-30.11.2021
              DATE OF JUDGMENT:-23.12.2021

  S.K. Panigrahi, J.

1. The present petitions have been directed against the judgment and order dated 02.03.2021 passed by the learned Sessions Judge- cum-Special Judge, Malkangiri in T.R No.94 of 2020, arising out of Maithili P.S Case No.125 of 2020, whereby the petitioners assail

the legality of the order of the learned Sessions-cum-Special Judge, Malkangiri in granting 60 days further time to the Investigating Officer for submitting charge sheet under Sections 147, 148, 302, 307, 333, 120-B, 353 and 149 of the Indian Penal Code (hereinafter referred to as "the I.P.C." for brevity) read with Section 20(b)(ii)(C), 25, 27-A, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" for brevity) without issuing notice to the petitioners.

2. Shorn of unnecessary details, the substratum of the issue presented before this Court remains that on 06.09.2020 one Girish Chandra Maharana(informant), S.I of Police of K. Gumma Outpost under the Orkel P.S lodged a written report before the I.I.C. of Maithili P.S alleging that he had obtained certain reliable information regarding a group of 100 persons carrying balance stick on their shoulders and moving towards Maithili P.S. On receiving such information, the I.I.C. of Maithili P.S accompanied by the informant proceeded towards the spot. On 06.09.2020 at around 2.00 AM, they apprehended a group of people carrying some incriminating articles on their shoulder and enquired about their identity.

3. The said group violently assaulted the police officers and their unit by means of stick, axe and other weapons resulting in death of Banabasi Maharana who was one of the Home Guards present at the spot. The Police was able to detain 36 persons at the said spot as other persons took advantage of darkness to facilitate their escape. The informant along with the I.I.C. of Maithili P.S effected seizure of 1917 kgs of Ganja and the detained persons, weren't able

to produce any documents permitting transportation and possession of the same.

4. Mr. Suryakanta Dwibedi, leaned counsel for the Petitioners in all the aforesaid cases submitted that on 02.03.2021, a petition under Section 36-A (4) of the N.D.P.S Act for further extension of 60 days for submission of charge sheet was made by the learned Special Public Prosecutor and the same was allowed by learned Sessions-cum-Special Judge, Malkangiri without any due notice to the Petitioners. He further submitted that the charge sheet was not filed even after 60 additional days and that the Petitioners accrued their indefeasible right to be released on bail on 01.05.2021 as per section 167(2) of the Cr.P.C.

5. Per contra, the learned counsel for the State has submitted that the order dated 02.03.2021 does not suffer from any illegality or irregularity as the effected seizure accounts for 1917 kgs of Ganja which is a commercial quantity. Moreover, learned counsel for the State has also argued that the gravity of the offence which includes violent conduct of the accused persons that resulted in death of one of the Home Guards.

6. Firstly, the matter of concern is whether Section 167(2) over- rides the provisions for bail under NDPS Act, which are special and stringent. It is necessary to view how the matter has been dealt by the statue especially with respect of interpretation of Section 167(2) of the Cr.P.C. is concerned: Section 167(2) of the Cr.P.C. read as follows:

"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen

days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) 1 the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, -

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention."

7. Bombay High Court in the case of Shashibala Nayar v. Intelligence Officer, NCB1 iterated that:

"8. Under section 37, sub-section (2), what is stated is that the limitation on granting of bail as provided under Clause (b) of sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. These are words of limitation and not of any expansion. They circumscribe the scope of the considerations for granting bail. Under the Act, bail can be granted only on the grounds mentioned under section 37, sub-section (1) and subject to such limitations as may have been provided under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. The Proviso to sub-section (2) of section 167, Cri.P.C. is not a limitation for the purpose of grant of bail, but only a technical lever enabling the release of an accused person where a chargesheet has not been filed within 90 days, if the offence is punishable with life sentence or sentence of ten years or above, irrespective of the fact whether investigation is still pending or not. In my opinion, if one reads the provisions of section 36-A and section 37 together and, particularly, sub-section (2) thereof it becomes clear that the proviso to subsection (2) of section 167 of the Code of Criminal Procedure will have no application in such cases where a person had been charged under any of the offences falling within the scope of the NDPS Act."

8. It is also relevant to note Section 36A (4) of the NDPS Act for the purpose of this matter: Section 36A- Offences triable by Special Courts. --

"(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

1990 Mah. Law Journal 457.

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."

9. Section 36A of the NDPS Act prescribes modified application of the Cr.P.C. as indicated therein. The effect of Sub-clause (4) of Section 36A of the NDPS Act requires that the investigation into certain offences under the NDPS Act be completed within a period of 180 days instead of 90 days as provided under Section 167(2), Cr.P.C. Hence the benefit of additional time limit is given for investigating a more serious category of offences. This is augmented by a further Proviso that the Special Court may extend time prescribed for investigation up to one year, if the Public Prosecutor submits a report indicating the progress of investigation and giving specific reasons for requiring the detention of accused beyond the prescribed period of 180 days.

10. The Hon'ble Supreme Court in the case of Hitendra Vishnu Thakur vs State Of Maharashtra2 iterated the provision for the public prosecutor to resist the grant of bail. This case deals with Section 20(4)(b) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA Act" for brevity), however, the provisions regarding limitations and restrictions on grant of bail are para materia in NDPS Act and TADA Act.

"31. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under

1994 SCC (4) 602.

clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by clause (bb) is filed by the public prosecutor first so ]on- as both are considered while -ranting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under clause (bb) but the charge-sheet is not filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it and is prepared to furnish the bail as directed by the court."

11. In view of the above, the impugned order granting 60 days further time to the Investigating Officer for submitting charge sheet and the final order rejecting the bail petition passed by the learned Sessions-cum-Special Judge, Malkangiri in T.R No.94 of 2020, do not suffer from any infirmity due to the gravity of offence committed. Accordingly, all the aforesaid CLRREVs are dismissed.

( S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 23rd Dec., 2021/B. Jhankar