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Siraj v/s State of Chhattisgarh, Through the District Magistrate, Ambikapur, Surguja (C.G.)

    Criminal Revision No. 394 of 2022

    Decided On, 06 May 2022

    At, High Court of Chhattisgarh

    By, THE HONOURABLE MR. JUSTICE N.K. CHANDRAVANSHI

    For the Petitioner: Sunil Sahu, Advocate. For the Respondent: Lalit Jangde, Govt. Advocate.



Judgment Text

1. This criminal revision has been preferred against the order dated 23.03.2022 passed by Special Judge (NDPS), Ambikapur, District Sarguja in Special Case No. 17/2022 (State of Chhatisgarh v. Siraj ) whereby an application filed by the petitioner under Section 167(2) of the Cr.P.C. for grant of default bail was dismissed.

2. Facts of the case, in brief, are that on 21.09.2021 at about 10 O'clock at night, police of police Station Gandhi Nagar, District Sarguja on the basis of secret information received from the informer, seized 99 nos. sealed bottle, each containing 100 ml, total 9900 ML (9.900 L) of psychotropic substance, namely, Maxcoff syrup from the illegal possession of the applicant. On the basis of above facts, FIR No. 0507 under Section 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth “NDPS Act”) was registered against the applicant and at about 2.10 at night he was arrested and on the same day i.e. on 22.9.2021, he was produced before the Special Judge, Sarguja at Ambikapur alongwith application for grant of judicial remand. On 22.9.2021 itself first remand was granted till 5.10.2021, subsequently, judicial remand was taken in several occasions. Lastly, the judicial remand was obtained up-till 21.03.2022. On 21.03.2022, again application for grant of judicial remand was filed but the same was dismissed by learned Special Judge, Ambikapur, Sarguja holding that 181 days of judicial remand of the applicant was completed on 21.03.2022, despite that charge-sheet was not filed and further remand for one day i.e. up till 22.3.2022 has been sought, but no report has been enclosed with the remand application as per proviso to Section 4 of Section 36(A) of the NDPS Act, which could demonstrate sufficient reasons for further detention of applicant and since extended period of filing final report i.e. 180 days has already been elapsed, therefore, learned Special Judge dismissed the application for grant of judicial remand.

3. On 22.3.2022, applicant filed an application under Section 167 (2) of the Cr.P.C. for grant of default bail. After hearing applicant and the prosecution, the case was posted for orders on 23.3.2022 and on 23.3.2022, learned Special Judge dismissed the application for grant of default bail, hence this criminal revision.

4. Learned counsel appearing for the applicant would submit that present crime has been registered against the applicant under Section 22(c) of the NDPS Act, as alleged psychotropic substance comes under commercial quantity, hence, as per Sub-Section 4 of Section 22 of the NDPS Act, charge-sheet should have been filed within the extended period for filing of charge-sheet i.e. 180 days but in the instant case, the police filed charge-sheet on 182nd day after first judicial remand of the applicant, despite that learned court below has refused to grant default bail and denied indefensible right of bail to the applicant, which is not in accordance with law. It is further submitted by learned counsel for the applicant that on 21.3.2022, applicant had objected orally for grant of further judicial remand, as police did not file charge-sheet within a period of 180 days and further remand was denied by learned Special Judge. On the same day i.e. on 21.03.2022, applicant prepared application for grant of default bail and filed before learned Special Judge. But his application was not decided on 22.3.2022 and fixed the case for orders on 23.3.2022 and on 23.3.2022, his application was rejected holding that charge-sheet is filed on 22.3.2022 and thereafter application for default bail was filed by the applicant whereas since the police did not file charge-sheet within a period of 180 days, hence, indefensible right of accused/applicant was accrued in his favour, therefore, learned Special Judge ought to have granted default bail to the applicant, hence, it is prayed that revision petition be allowed and default bail may be granted to the applicant. He placed reliance upon the judgments of the Supreme Courts in the matters of M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485, Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 & Vinay Dubey & another v. State of C.G. 2022 (1) CGLJ 193 in support of his submissions.

5. On the other hand, learned counsel for the State vehemently opposes the submissions made by counsel for the applicant and submits that although challan was not filed within extended period of 180 days from the date of first remand and the same was filed on 182nd day and on the same day applicant has also filed an application for grant of default bail but the impugned order dated 23.03.2022 itself shows that applicant has filed an application under Section 167 (2) of the Cr.P.C. for grant of default bail after filing of charge-sheet. Thus, since charge-sheet was filed before filing of application for grant of default bail, due to this, applicant is not entitled for grant of default bail, and, therefore, learned Special Judge has not committed any illegality or infirmity in rejecting the default bail application filed by the applicant.

6. I have heard learned counsel appearing for the parties and perused the case diary as well as material available on record.

7. Perusal of case diary and impugned order would go to show that the instance case pertains to illegal possession of psychotropic substance, which comes under the commercial quantity, which is punishable under Section 22 (c) of the NDPS Act, therefore, as per proviso to Sub-Section 4 of Section 36 of the NDPS Act, charge-sheet should have been filed within the extended period of 180 days from the first judicial remand dated 22.9.2021. Hon’ble Supreme Court in the case of Central Bureau of Investigation v. Nazir Ahmed Sheikh AIR 1996 (83) SC 2980 has held that the period for filing of charge-sheet would begin to run and be counted from the next date of arrest of the accused. However, the date of accused being sent on remand would be excluded but the date on which charge-sheet was filed is to be included. Thus, in the instant case the charge-sheet was to be filed till 21.3.2022 but the same was filed on 22.3.2022 i.e. 182nd day from the date of first judicial remand and since, charge-sheet was not filed within 180 days, therefore, right of default bail had arisen in favour of applicant.

8. Certified copy of the order-sheet dated 22.03.2022 would go to show that application for default bail under Section 167 (2) of the Cr.P.C. was filed by the applicant on 22.03.2022. Order sheet dated dated 23.03.2022 would also go to show that on 22.03.2022, chargesheet of the case was also filed by the police against the applicant. Thus, application for default bail and charge-sheet was filed on the same day but impugned order specifically demonstrate that after filing of charge-sheet, application under Section 167 (2) of the Cr.P.C. for grant of default bail was filed by the applicant, therefore, his application for grant of default bail has been dismissed by the learned Special Judge (NDPS).

9. Thus, issue involved in this case is whether right of default bail under Section 167 (2) of the Cr.P.C. survives, when charge-sheet already is filed before filing of default bail application ?

10. Period for filing of charge-sheet has been provided under the law to saddle the liability upon the Investigating Agency for the purpose to investigate the matter as early as possible or up till the period prescribed under the law. If Investigating Agency is failed to file charge-sheet within the prescribed period, then indefensible right of default bail under Section 167 (2) of the Cr.P.C. comes into play, on account of fault committed by the Investigating agency by not filing charge-sheet within the prescribed period. But after prescribed period, if the applicant/accused does not claim his right of default bail and prior to that charge-sheet is filed, then status of right of default bail got changed.

11. In the matter of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, their Lordships of the Supreme Court has held as under:-

“23. The Constitution Bench in the aforesaid judgment [Sanjay Dutt v. State through CBI (1994) 5 SCC 410] has clearly laid down that the indefeasible right of the accused `is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if not already availed of . [Emphasis added]. It has further laid down that custody of the accused after challan has been filed is not governed by the provisions of Section 167 of the Code, but different provisions of the Code. The right of the accused cannot be enforced after the challan is filed `since it is extinguished the moment challan is filed. The case of Sanjay Dutt also referred to the views expressed by the three earlier Constitution Benches of this Court in connection with writ of habeas corpus on the ground that there was no valid order of remand passed by the court concerned. It has reiterated that a petition seeking writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused has to be dismissed if on the date of the return of the rule the custody or detention is on the basis of a valid order.”

12. The said proposition has been relied upon by the Supreme Court in the matter of M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence 7 (2021) 2 SCC 485 with full rigour and held thus:-

“25.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

25.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.”

13. Applying the ratio of law laid down by Hon'ble Supreme Court in the afore-cited cases (supra) to the facts of the present case, it is quite vivid that as per impugned order though on 22.3.2022 charge-sheet was filed against the applicant under Section 22(c) of the NDPS Act but on the same day application for default bail under Section 167(2) of the Cr.P.C. was also filed by the applicant. It also appears that though, according to counsel for the applicant d

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efault bail application was filed by the applicant on 21.3.2022 but order sheet of learned Special Judge does not support his contention, because, as per order sheet dated 22.3.2022 that application was filed by the applicant on 22.3.2022 itself. Even endorsement on the application also shows that it was filed on 22.3.2022 only. Contention of paragraph 3 of default bail application also shows that application and charge-sheet was filed on the same day, therefore, aforesaid submission made by counsel for the applicant is baseless. But order impugned clearly demonstrates that on 22.3.2022, earlier charge-sheet was filed by the police and, thereafter, applicant filed an application for default bail under Section 167 (2) of the Cr.P.C., therefore, in view of the law laid down by Hon'ble Supreme Court in the aforesaid cases (supra), applicant's right of default bail was extinguished. Thus, I do not find any infirmity or illegality in the order impugned rejecting the application for grant of default bail filed by the applicant. 14. As a fallout and consequence of the aforesaid discussion, the criminal revision, being devoid of substance, is liable to be and is hereby dismissed at the admission stage itself.
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