Shri. Sanget Deb Barman v. Union of India Directorate of Revenue Intelligence (DRI) Shillong

Serial No. 03Regular ListHIGH COURT OF MEGHALAYA AT SHILLONGCrl. Petn. No. 37 of 2024 Date of Decision: 22.10.2024Shri. Sanget Deb BarmanS/o Shri. D.S. BarmanR/o Aidankul,P.O Chamahour, P.S KhowaiDistrict Khowai, Tripura ……Petitioner -VERSUS- Union of IndiaDirectorate of RevenueIntelligence (DRI) Shillong ……RespondentCoram:Hon’ble Mr. Justice W. Diengdoh, JudgeAppearance:For the Petitioner/Appellant(s): Ms. S. Nongsiej, Adv. For the Respondent(s): Dr. N. Mozika, DSGI with Ms. R. Fancon, Adv.i) Whether approved for reporting in Yes/No Law journals etc.:ii) Whether approved for publication in press:Yes/NoORDER (ORAL)1.Heard Ms. S. Nongsiej, learned counsel for the petitioner whohas submitted that the petitioner being aggrieved by the order dated1

18.07.2023 passed by the learned Special Judge (NDPS) in DRI CaseNo.07/CL/NDPS/GANJA/DRI/SHG/2023-24 has now approached thisCourt with a prayer for quashing and setting aside the said orderimpugned herein.2.It is the submission of the learned counsel that the petitionerwas arrested by the officers of the Directorate of Revenue Intelligence(DRI), Shillong Regional Unit on 14.01.2023 and was remanded tojudicial custody on the same day. The petitioner is still under custody tilldate, his custody being extended from time to time on prayer of remand.3.The petitioner being in custody for more than 180 days, therefore on 14.07.2023 an application for grant of default bail waspreferred before the trial court, the application being registered as BailApplication No. 174(H) 2023 wherein the learned Special Judge hadposted the matter for hearing on 18.07.2023.4.It is also mentioned that the DRI on an application made underSection 36A(4) of the NDPS Act dated 12.07.2023 had also made aprayer before the trial court to allow extension of the period ofinvestigation by 90 days. The said application was also finally heard on18.07.2023.5.The learned Special Judge vide related order dated 18.07.2023has allowed the prayer for extension of the period of investigation byanother 45 days effective from 13.07.2023.6.By another order of even date that is, on 18.07.2023 passed inBail Application No. 174(H) 2023, the learned Special Judge hasrejected the prayer made therein by observing that the court having2 extended the period of investigation for another 45 days and furtherremand of the accused beyond the period of 180 days being allowed, thegrant of default bail to the accused person does not accrue.7.The learned counsel has submitted that the observations madeand the rejection of the application for grant of default bail by thelearned Special Judge has been made on a wrong assumption of the factsand the settled legal position governing the provision of default bail.8.It is the contention of the learned counsel that the mandatoryperiod of 180 days stipulating the time within which the chargesheetshould be filed in cases under the NDPS Act involving investigation incase of seizure of commercial quantity of narcotic substance as far as thecase in hand is concerned has expired on 12.07.2023. On the 180th dayno chargesheet has been filed instead an application for extension oftime to file the same has been preferred. The learned Special Judgeimmediately on receipt of the said application has not passed any orderbut has finally passed the same only on 18.07.2023, that is, after 6 dayswhen the right to default bail has accrued. In the meantime, thepetitioner being entitled to default bail since the chargesheet has notbeen filed within or on the 180th day, on the 182nd day, that is, on14.07.2023, the petitioner has accordingly preferred the said applicationfor grant of default bail. The learned Special Judge having failed to passany effective order on the application for extension of time for furtherinvestigation, even if such application is pending consideration at thetime when the application for grant of default bail was made, it isincumbent upon the learned Special Judge to allow the prayer for grantof default bail, submits the learned counsel.3

#9. In support of this contention, the case of Judgebir Singh @Jasbir Singh Samra @ Jasbir & Ors. v. National Investigation Agencywas cited by the learned counsel for the petitioner referring to para 76and 77 of the order dated 01.05.2023 in Criminal Appeal No. 1011 and1012 of the 2023. The case of Grant Victor Ikenna v. State Rep. by theInspector of Police, NIB-CID, Chennai before the Hon’ble Madras HighCourt was also cited, particularly at para 8, 9 and 10 of the order dated08.02.2024. The case of M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence, (2020) 12 SCR 915 para 12 wasalso relied upon in this regard.10.Learned DSGI, Dr. N. Mozika in support of the impugned orderhas submitted that the facts that are to be noted is that the application forextension of time to complete the investigation has been filed prior tothe application for grant of bail filed by the petitioner.11.The learned DSGI on the contention of the learned counsel forthe petitioner that the application for grant of default bail ought to havebeen considered by the learned Special Judge in spite of the saidapplication for extension of time being filed by the DRI, has submittedthat the answer to this contention is that the trial court being aware ofthe two applications pending for consideration has come to the rightdecision, when on the application for extension of time being allowed, the issue of default bail has lost its relevance. In support of thiscontention, the case of Sanjay Dutt v. State through C.B.I., Bombay (II)reported in (1994) 5 SCC 410 was cited wherein at para 48 of the samethe Hon’ble Supreme Court has observed that if there is an applicationfor release on bail under Section 167 Cr.P.C and also another applicationwith a prayer for extension of time to complete the investigation then in4 such a case bail cannot be granted unless the application for extension oftime is rejected. This is exactly the situation as regard the impugnedorder dated 18.07.2023 when the prayer for grant of default bail hasbeen rejected by the trial court, submits the learned DSGI.12. This Court has given due consideration to the submissions ofthe learned counsels for the respective parties, the facts as stated abovenot required to be recounted, what is required to be considered here isthe legal aspect of the matter.13.The law is present which provides for an accused person toseek enlargement on default bail if he is in custody beyond the periodstipulated for filing of the final report or the charge sheet by theInvestigating Officer (IO), in cases under the NDPS Act, for an offenceunder Section 20(C), involving seizure of a commercial quantity ofcontraband substance, the period for filing of the chargesheet is fixed at180 days as per Section 36A(4) NDPS Act, where it is expected that theinvestigation would have been concluded. However, if the investigationcould not be completed within such period of 180 days, the prosecutionis permitted to seek extension of such stipulated period.14.In the case between the parties herein, admittedly, the period of180 days has since expired when, on the 180th day, the prosecution hasfiled an application for extension of time to complete the investigation.15.Again, as is provided under Section 167(2) of the Code ofCriminal Procedure, on expiry of the period stipulated for filing thechargesheet, an indefeasible right has accrued to the accused to seekrelease on default bail which ought to be granted by the court on anapplication made therein. The petitioner has also accordingly filed such5 bail application on 14.07.2023, two days after the stipulated period of180 days has expired and no chargesheet having been filed till such date.16.The Apex Court in the case of Judgebir Singh @ Jasbir SinghSamra @ Jasbir (supra), particularly para 76 and 77 relied upon by thepetitioner has dealt with a situation wherein an application for extensionof time to complete the investigation was filed prior to the expiry of thestatutory period for filing of the chargesheet, but such application wastaken up and an order passed only after 10 days or so after the expiry ofsuch statutory period, the question of the Court was what would havehappened had an application for grant of default bail been filed duringthe pendency of consideration of the said application for extension oftime. The Court has answered this question at para 77 when it observedthat “The right to be released on default bail continues to remainenforceable if the accused has applied for such bail, notwithstandingpendency of the bail application or subsequent filing of the chargesheetor a report seeking extension of time by the prosecution before thecourt”.17.The Apex Court upon such observations as at para 76 and 77having been made has further qualify the same by the observationrendered at para 78 of the same, which somewhat resemble the situationwherein the impugned order dated 18.07.2023 was passed. Reproductionof the said observations is being made herein as:“78. Our observations in paras 76 and 77 respectively as aboveare keeping in mind the decision of this Court rendered by athree-Judge Bench in the case of Sayed Mohd. Ahmad Kazmi v.State (Government of NCT of Delhi) and Others reported in(2012) 12 SCC 1, wherein in paras 25, 26 and 27 respectively, this Court observed as under:6 “25. Having carefully considered the submissions made onbehalf of the respective parties, the relevant provisions oflaw and the decision cited, we are unable to accept thesubmissions advanced on behalf of the State by thelearned Additional Solicitor General Mr Raval. There is nodenying the fact that on 17-7-2012, when CR No. 86 of2012 was allowed by the Additional Sessions Judge andthe custody of the appellant was held to be illegal and anapplication under Section 167(2) CrPC was made onbehalf of the appellant for grant of statutory bail whichwas listed for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same tillthe next day when the Public Prosecutor filed anapplication for extension of the period of custody andinvestigation and on 20-7-2012 extended the time ofinvestigation and the custody of the appellant for a furtherperiod of 90 days with retrospective effect from 2-6-2012.Not only is the retrospectivity of the order of the ChiefMetropolitan Magistrate untenable, it could not also defeatthe statutory right which had accrued to the appellant onthe expiry of 90 days from the date when the appellantwas taken into custody. Such right, as has beencommented upon by this Court in Sanjay Dutt [(1994) 5SCC 410 : 1994 SCC (Cri) 1433] and the other cases citedby the learned Additional Solicitor General, could only bedistinguished (sic extinguished) once the charge-sheet hadbeen filed in the case and no application has been madeprior thereto for grant of statutory bail. It is well-established that if an accused does not exercise his right togrant of statutory bail before the charge-sheet is filed, heloses his right to such benefit once such charge-sheet isfiled and can, thereafter, only apply for regular bail.26. The circumstances in this case, however, are differentin that the appellant had exercised his right to statutorybail on the very same day on which his custody was heldto be illegal and such an application was left undecided bythe Chief Metropolitan Magistrate till after the applicationfiled by the prosecution for extension of time to completeinvestigation was taken up and orders were passedthereupon.27. We are unable to appreciate the procedure adopted by7 the Chief Metropolitan Magistrate, which has beenendorsed by the High Court and we are of the view thatthe appellant acquired the right for grant of statutory bailon 17-7-2012, when his custody was held to be illegal bythe Additional Sessions Judge since his application forstatutory bail was pending at the time when the applicationfor extension of time for continuing the investigation wasfiled by the prosecution. In our view, the right of theappellant to grant of statutory bail remained unaffected bythe subsequent application and both the ChiefMetropolitan Magistrate and the High Court erred inholding otherwise.”18.Now, another aspect of the matter is to be considered, inasmuchas the authority in the case of Sanjay Dutt (supra) has revealed that theApex Court while making an observation on the merits of the case ofHitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, hasat para 48 opined that “…The Division Bench also indicated that if therebe such an application of the accused for release on bail and also aprayer for extension of time to complete the investigation according tothe proviso in Section 20(4)(bb), both of them should be consideredtogether. It is obvious that no bail can be given even in such a caseunless the prayer for extension of the period is rejected. In short, thegrant of bail in such a situation is also subject to refusal of the prayerfor extension of time, if such a prayer is made…”.19.To further qualify this observation or opinion, a three Judgebench of the Supreme Court in the case of M. Ravindran (supra) at para14.1 has observed as follows:“14.1. The observations made in Hitendra Vishnu Thakur(supra) and Sanjay Dutt (supra) to the effect that the applicationfor default bail and any application for extension of time madeby the Public Prosecutor must be considered together are, in ouropinion, only applicable in situations where the Public8 Prosecutor files a report seeking extension of time prior to thefiling of the application for default bail by the accused. In sucha situation, notwithstanding the fact that the period forcompletion of investigation has expired, both applicationswould have to be considered together. However, where theaccused has already applied for default bail, the Prosecutorcannot defeat the enforcement of his indefeasible right bysubsequently filing a final report, additional complaint or reportseeking extension of time.”20.What has emerged from the above proposition is that even ifthe statutory period has expired and an indefeasible right of default bailis available to the accused, an application in such regard has to be filedbefore the court concerned. Again, if there is also an application filed bythe prosecution seeking extension of time, the Court may hear both theapplications simultaneously, however the court can do so only if theapplication for extension of time is filed first in point of time.21.In the case of the petitioner, admittedly, the application forextension of time was filed on the 180th day, while the application fordefault bail was filed two days hence. Therefore, the fact that the trialcourt has considered both application on the same day and an orderdated 18.07.2023 was also passed on the same day cannot be faulted.22.Following the observations in the case of Sanjay Dutt (supra) atpara 48, the application for extension of time being allowed by the trialcourt, rejection of the application for grant of default bail is thereforefound justified.23.As to the alleged illegality of the impugned order allowing theextension of time with retrospective effect, that is, w.e.f. 13.07.2023, thisCourt would agree that the same is not founded on settled principles oflaw in this regard, however, the same will not have much bearing on the9 facts and circumstances of the case of the parties inasmuch as by thistime, the chargesheet have already been filed and the case has proceededin due course.24.Under such circumstances, this Court is of the consideredopinion that the impugned order was passed keeping the acceptedprinciple of law intact. There is no infirmity in the same.25.Resultantly, this petition is found to be devoid of merits and thesame is hereby dismissed.26.Petition disposed of. No costs. Judge10