The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2799 of 2023 (An application under Section 482 of Cr.P.C.) Thallury Chakrabarty ...… Petitioner --------------- -Versus- State of Odisha .... Opposite Party Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/S. T.K.Sahu, P.Mohapatra, S.K.Hodopo & S.R. Panda, Advocates. For Opp. Party
Legal Reasoning
: Mr. S.K.Mishra, Additional Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA
Decision
ORDER 5th September, 2023 SASHIKANTA MISHRA, J. The petitioner is in custody since 29.05.2022 in connection with Special G.R. Case No. 93 of 2022 arising out of Podia P.S. Case No. 50 of 2022 pending in the Court of learned Sessions Judge-cum-Special Judge, Malkanigiri. Khandapada for the alleged commission of offences under Page 1 of 8 Sections 20(b)(ii)(C)/25 of the Narcotics Drugs and Psychotropic Substances Act, 1985. 2. It is alleged that the petitioner was transporting contraband Ganja weighing 141 K.g. 700 grams when he was apprehended by the police. He was forwarded to custody on the same day i.e.29.05.2022 and as per order passed by the learned Special Judge, Malkanigiri he was remanded to judicial custody. 3. Mr. T.K. Sahoo learned counsel for the petitioner submits that considering the date of first remand i.e. 29.05.2022 the stipulated period of 180 days expired on 24.11.2022 and therefore an indefeasible right of the accused to be released on default bail as per Section 167 (2) of Cr.P.C. accrued in his favour on the next date i.e. 25.11.2022. However, the chargesheet though bears the date 23.11.2002 was actually submitted on 01.12.2022, and taken on record by a judicial order which was on the 187th day. It is further submitted by Mr. T. Sahu that the petitioner was never produced before Page 2 of 8 the Court on 25.11.2022 nor his right to be released on default bail was informed to him. 4. Mr. S.K.Mishra, learned Additional Standing Counsel after going through the date chart furnished by Mr. Sahu as also photocopy of the order sheet furnished by the Court below for the case record, fairly submits that chargesheet was not submitted within the stipulated period of 180 days. 5. This Court has carefully perused the photocopy of the entire order sheet furnished by the Trial Court. It appears that the petitioner was arrested and forwarded to the Court on 29.05.2022 at about 6 p.m. He was remanded to judicial custody on the same day and as such, the 180 day period is calculated in the following manner. 29.05.2022 to 31.05.2022 03 days 01.06.2022 to 30.06.2022 30 days 01.07.2022 to 31.07.2022 31 days 01.08.2022 to 31.08.2022 31 days Page 3 of 8 01.09.2022 to 30.09.2022 30 days 01.10.2022 to 31.10.2022 31 days 01.11. 2022 to 24.11.2022 24 days Total 180 days Charge Sheet Submitted on 01.12.2022 25.11.2022 to 01.12.2022 07 days Total 187 days 6. It is thus evident that the 180 day period expired on 24.11.2022. The case record shows that the case was posted to 11.12.2022 and thus, no attempt was made by the Court below to post the case on 181st day to inform the accused of his indefeasible right of default bail, despite the fact that charge sheet had not been submitted by them. Further, by order dated 01.12.2022, the Court below took the charge- sheet purportedly dated 23.11.2022 on record, without indicating anything as to why it was not done so earlier if at all, the charge-sheet had been submitted. It goes without Page 4 of 8 waying that regardless of the date mentioned in the charge- sheet, the date on which it is actually taken on record by a judicial order is only relevant, more so in the absence of any reason being cited by the court for delayed acceptance thereof, if at all. Thus, in the facts of the case, it must be held that the charge-sheet was submitted on 01.12.2022 and not 23.11.2022. 7. The Apex Court as well as this Court in a catena of decisions have emphasized the valuable right of the accused to be informed of his indefeasible right and of being released on bail under Section 167(2) of Cr.P.C. in case the investigation is not completed within the stipulated period of 180 days as per Section 36(A) of NDPS Act. Moreover, this right has been recognised as being akin to a fundamental right guaranteed under Article 21 of the Constitution of India. 8. It need not be over emphasized that the right of the accused to be released on default bail is a valuable right akin to his fundamental right under Article 21 of the constitution Page 5 of 8 of India. All Courts are expected to be alive to the constitutional right of the accused while dealing with matters affecting his personal liberty. In the Case of Lambodar Bag V. State of Orissa, reported in (2018) 71 OCR 31, this Court had the occasion of dealing with the aforementioned statutory provisions vis-(cid:224)-vis Article 21 of the Constitution of India and unequivocally held that the right of the accused to be released on bail for the default of the investigating agency to submit charge sheet within the stipulated time cannot be taken lightly and that the principle of natural justice must be adhered to in letter and spirit. It being a matter of personal liberty, the Court ought to have informed the accused by having him produced, which was not done. So even if the accused had not made prayer for bail upon expiry of the stipulated period yet, in the peculiar facts and circumstances narrated above, the same shall not scuttle his indefeasible right to bail. Had the Court so informed the accused and the later failed to move for bail, the matter would have been different but in the facts of this case, there Page 6 of 8 can be no other conclusion than that the right of the accused has survived as his detention beyond the period of 180 days is illegal. 9. From what has been narrated hereinbefore, it is evident that the Court below has not been alive to the salutary position of law. On facts, this Court has already found that the chargesheet was not submitted within the stipulated period and the accused was also not produced before the Court to inform him of his right of being released on default bail. 10. In such view of the matter, this Court holds that the accused is entitled to be released on default bail. 11. The CRLMC is therefore disposed of directing the Court below to release the petitioner on such terms and conditions as it may deem fit and proper to impose including the following condition that he shall not leave the State of Odisha without obtaining leave of the Court and shall furnish his contact number and address to the I.O. as well as the Court. He shall appear before the IIC of Podia Police Station once in Page 7 of 8 a fortnight and such fact shall be certified by the IIC to the concerned Court once in a fortnight and such fact shall be certified by the IIC to the concerned court once in a month and he shall personally appear before the trial court on each date of posting of the case without seeking representation and in case of even a single default, necessary order shall be passed to take him to custody again. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 5th September, 2023/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC, Cuttack Date: 14-Sep-2023 20:13:37 Page 8 of 8