and 13.02.2018 passed by the learned
Court below for ready reference, which read as
under:
13.02.2018 The case record is put up today as the I.O. has
submitted up-to date case diary, statement
u/s 161 Cr.P.C., seizure lists and other
connected documents along with a petition to
extend the stipulated time for submission of
Charge Sheet for a period of another 30 days
on the ground stated there in. Heard.
The learned Special P.P. submitting on
behalf of the I.O. that the major part of
investigation is completed, but the
absconding accused persons namely Ajay
Ganda, Kabul @ Laxman Khara, K. Balaji
Krishna, Samara Gatan, P. Harish and Kalu
@ Ranjit Sharma are yet to be arrested. The
stipulated period of 180 days to submit the
charge sheet has expired on 13.02.2018,
therefore the prayer has been made to
extend further period of 30 days for
completion of the investigation and
submission of charge sheet in this case.
Heard the learned Special P.P. Perused
the contents of the petition. After having gone
through the petition in detail and having
heard the submission by the learned Special
P.P. on behalf of the I.O., it is felt that the I.O.
requires more time for submission of the
charge sheet for some justified reasons cited
in the petition.
Accordingly, the I.O. is to proceed within
the ongoing investigation and permitted
another 30 days time with effect from
14.02.2018 and he is further directed to
submit the charge sheet after the extended
time as per provision of Sec.36-A(4) proviso of
N.D.P.S. Act.
Put up on the date fixed i.e. on 16.02.2018
awaiting F.F."
4. Perusal of the aforementioned orders, which is
impugned in the present petition, makes it
apparently clear that the learned trial Court has
allowed the application of the I.O. seeking extension
of time to file the charge sheet without even putting
the accused persons to notice. It is also admitted that
the accused-petitioner was in the custody on the
relevant date. He was lastly produced before the
Court on 18.01.2018. Neither on 12.02.2018 nor on
13.02.2018, the accused persons those who were in
custody including the present petitioner were
produced before the Court.
5. It is also obvious from the aforementioned order
that the accused persons were also not represented
by their counsel.
6. In the aforementioned fact scenario of the case,
the law relating to Section 43A of the N.D.P.S. Act
needs to be analysed. It is well settled principle of law
that, once such application is moved by the P.P.
seeking extension of time for filing the charge sheet,
mandatory notice ought to be issued to the accused
persons who are in custody. The accused persons
have the right of audience at that stage, which has
been recognized as a valuable right and a procedural
safeguard contemplated under the Act. In that
regard, Mr. Manohar, learned counsel for the
petitioner has relied upon the judgment of this Court
dated 20.08.2020 passed in BLAPL No.10152 of
2019 in the case of Iswar Tiwari vs. State of
Odisha. He has pointed out paragraph-17 of the said
judgment, which reads thus:
"17. In the light of the aforementioned case laws
relied upon, it is felt that the law on the subject
needs to be crystallized for better appreciation by
the courts below. In the event the investigation is
not completed within 180 days, the Court is
empowered under Section 167 (2) of the Code of
Criminal Procedure, 1973 read with Section 36-A
(4) of the NDPS Act to authorize detention for a
period up to one year, the law as it stands
mandates that the same shall be subject to the
following, being complied in letter and spirit. The
legal position can be thus summarized as follows: -
i) Report of the Public Prosecutor
indicating the progress of investigation
must accompany the application for
extension of time ;
ii) Specific and compelling reasons for
seeking detention of the accused beyond
180 days must be mentioned; a merely
formal application will not pass muster;
iii) A notice must mandatorily be issued to
the accused and he must be produced in
court whenever such an application is
taken up.
iv) An application seeking extension of time
in filing of charge sheet by the
prosecution ought not to be kept pending
and must be decided as expeditiously
as possible and certainly before expiry
of the statutory period.
v) In cases where any such default occurs,
the question of it being contested does
not arise and a right accrues in favour
of the accused.
vi) The restrictions under Section 37 will
have no application in such cases. It will
have application only in the case of an
application being decided on merits.
vii) Violation of any of the aforesaid would
be construed as a "default" and the
accused become entitled to admitted to
bail by such a default.
viii) When an application under Section
167(2) Cr.P.C. r/w Section 36A(4) of the
NDPS Act has been filed after expiry of
the 180 days period and no decision
thereupon, an indefeasible right to be
released on bail accrued to the accused
which cannot be defeated by keeping
the said applications pending.
In case there is violation of any of the above, an
indefeasible right to bail will be accrued to the
accused. Applying the aforesaid parameters as laid
down hereinabove, it is quite evident that there
have been such "defaults" in the instant case,
especially non-service of notice on the accused
which is violative of the most cardinal principle of
natural justice i.e. Audi Alteram Patem which
creates an indefeasible entitlement to bail to the
petitioner."
This Court while dealing with an application
u/s 167(2) of Cr. P.C culled out the broad procedure
to be followed by the trial court while giving extension
to the investigating agency to file the report u/s.173
Cr. P.C.
7. It is no more res integra that, once the statutory
period expires without the charge sheet being filed,
the court in seisin must dispose of the bail
application of the accused under Section 167(2) of
Cr.P.C. on the same day itself, as the statute
envisages a compulsive bail in favour of the
petitioner.
8. It is also well settled principle of law that, before
grant of extension of time to file the charge sheet,
notice should be issued to the accused so that he
may have an opportunity to oppose the extension,
which is sine qua non for seeking extension under
Section 36A(4) of the NDPS Act. In short, violation
thereof, would entitle the benefit to the accused to get
enlarged on bail. That being the legislative command,
the Court's discretion cannot supersede and the
Court at that stage should not advert to the merits of
the case by examining the evidence so as to tailor the
relief.
9. This position of law has been consistently
followed by various judgments of the Hon'ble
Supreme Court including the judgments in the case
of Rajnikant Jivanlal v. Intelligence Officer,
Narcotic Control Bureau, reported in (1989) 3 SCC
532, Aslam Babalal Desai v. State of
Maharashtra, reported in (1992) 4 SCC 272 and
Bipin Shantilal Panchal (Dr) v. State of Gujarat,
reported in (1996) 1 SCC 718.
10. Mr. U.R. Jena, learned Additional Government
Advocate for the opposite party-State vehemently
opposed the prayer made by the learned counsel for
the petitioner. He contended that, the petitioner is a
repeated defaulter. He has pointed out from the
proceeding of this Court in BLAPL No.8573 of 2023
dated 15.12.2023 that, the petitioner was enlarged
on interim bail by this Court and he was supposed to
surrender on 18.02.2021. After expiry of the interim
bail period, the petitioner did not surrender. Hence,
the order of N.B.W. was issued against him and the
trial had to be splitted up. Subsequently, he was
apprehended on 11.06.2023. He has been in custody
since then.
11. This Court, while disposing of his bail
application, has passed the following order:
"Perused the status report submitted by the
learned trial Court dated 30th November 2023
from which it appears that the petitioner was
granted interim bail by this Court and he was
supposed to surrender on 18.02.2021, but he did
not surrender on that day for which non-bailable
warrant of arrest was issued against him and the
case against him was split up and he was
produced before the learned trial Court on
11.06.2023 on execution of non-bailable warrant
of arrest and now the case is posted to
18.01.2024 for consideration of the charge.
Since the petitioner has flouted the terms and
conditions of the interim bail order and did not
surrender before the learned trial Court and he
could only be apprehended after more than two
years, while not inclining to release the petitioner
on bail, I direct the learned trial Court to expedite
the trial and conclude the same within a period of
six months from the date of framing of the charge.
The petitioner is at liberty to renew his prayer for
bail if the trial is not concluded within the
aforesaid period."
12. Mr. Jena, learned State Counsel further pointed
out that, this Court, by separate two orders, enlarged
the petitioner on interim bail on 20.03.2019 and
20.08.2019 for one month and three months
respectively. Both the orders have been flouted by the
petitioner. It is on the basis of the direction issued by
this Court dated 29.01.2021 in BLAPL No.10946 of
2019, the petitioner was apprehended. The petitioner
has been avoiding arrest and causing all hindrances
for smooth trial of the case. Eventually, because of
the conduct of the petitioner, the trial has been
splitted up. Therefore, it is contended that the
petitioner has no right to be released on bail as
admittedly he has twice violated the Court's orders.
Therefore, Section 162 of the Cr. P.C benefit will not
be inure to the petitioner, as the liberty granted to
him has been repeatedly misused by him.
13. I have examined the legal position and evaluated
the facts in the light of the settled position. In the
background of the legal principle as discussed above,
it is evident that the order dated 13.02.2018 passed
by the learned Special Judge, Jeypore in granting the
extension of time on the application of the I.O. to
complete the investigation by another 30 days
without having the accused produced before him or
without granting him an opportunity to have his say
in the matter, renders the said order illegal and
unsustainable in the eye of law.
14. This Court is of the considered view that, the
indefeasible right of the accused must be held to
have survived notwithstanding the submission of the
charge sheet and notwithstanding his conduct of
violation of the interim bail. The statutory entitlement
of the petitioner cannot be subdued under any
circumstances because of his release on bail due to
default of the prosecution in filing the charge sheet
within the prescribed period by not following the
stringent procedural safeguard provided under the
Act.
15. Therefore, I am inclined to allow the present
petition and the learned trial Court is directed to
release the petitioner on bail on such terms and
conditions, as the Court deems fit and proper in the
facts of the present case.
16. The CRLMC is accordingly disposed of.
(S.S. Mishra)
Judge
Subhasis
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack.
Date: 27-Jan-2025 18:46:35
