Ori HC | ‘Default Bail’ granted under S. 167(2) CrPC in case of non-compliance of notice under S. 36 A (4) NDPS Act

Orissa High Court: S.K. Panigrahi J., granted bail on grounds of non-service of notice on the accused which is violative of the most cardinal principle of natural justice.

The facts of the case are that while the informant in the instant case along with his staff was on patrolling duty they detained the accused on suspicion and discovered eleven polythene packets containing 270kg 200gms of Ganja. They were charged under Section 20(b)(ii) of the N.D.P.S. Act and subsequently arrested. The Petitioner along with other accused persons were forwarded to the Court of Sessions Judge-cum-Special Judge, Koraput, Jeypore who directed S.I. Sima Pradhan of Jeypore Sadar P.S to commence investigation. An application for extension of the submission of charge sheet was filed which was subsequently granted through ex parte proceedings without issuing notice to the accused persons. Aggrieved by the same, the present petition for grant of bail under Section 439 CrPC, 1973 has been preferred before the court.

Counsel for the petitioner Jyotirmaya Sahoo and S.K Pattnaik submitted that the court has erred in passing the ex parte order which is in violation of Section 36 A(4) of the N.D.P.S. Act which mandates that an opportunity of hearing must be given to the accused before granting an extension for a further period of 60 days for completing the investigation. Due to this violation, the petitioner is entitled to be enlarged on bail.

Counsel for the respondent Tapas Kumar Praharaj submitted that the Petitioner is a resident outside the state hence there are higher chances of fleeing from justice and considering the nature and gravity of the offence, the Petitioner ought not be released on bail.

 Seeking extension for default in filing of chargesheet vis-à-vis grant of bail

In Bipin Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; Pappu Ram v. State of Rajasthan, 2017 SCC Online Raj 3418Arvind Kumar Saxena v. State, 2018 SCC Online Del 7769 and Venkatesh v. State, 2019 SCC OnLine Mad 995 it was clarified that although a default in filing the chargesheet would confer an indefeasible right of the accused to be admitted to bail. However, if an accused fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet has been filed. On the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet.

Non-issuance of notice to the accused at the stage of hearing the application for extension of time

In Pradip Maity v. Union of India, 2010 SCC OnLine Cal 1503 it was held that before the grant of extension of time, 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 N.D.P.S Act. Any sort of violation thereof would entitle the benefit to the accused to get enlarged on bail.

 Rejection of bail application by Special Judge

In Union of India v. Thamisharasi (1995) 4 SCC 190 it was held that the only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the charge sheet within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The reasoning behind such a view is that till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him under Section 37(1)(b) of the NDPS Act. It is held that such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.

On hearing the arguments and authoritative pronouncements Court summarized the legal principles on the same, violation of which will accrue the right to bail. These are as follows:

  1. Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;
  2. Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;
  3. A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,
  4. An application seeking extension of time in filing of chargesheet 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.
  5. In cases where any such default occurs, the question of it being contested doesn’t arise and a right accrues in favour of the accused.
  6. 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.
  7. 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.
  8. When an application under Section 167(2) CrPC 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

 The Court held that in case there is a violation of any of the above, an indefeasible right to bail will be accrued to the accused. The Court further applied the aforesaid parameters in the instant case and laid down that there have been such “defaults” in the instant case, especially non-service of a notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the petitioner and hence he is enlarged on bail.

In view of the above, bail is granted and the petition disposed off.[Ishwar Tiwari v. State of Odisha, BLAPL No.10152 OF 2019; decided on 20-08-2020]


Arunima Bose, Editorial Assistant has put this story together

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