NITISH @ NITESH KANDA v. STATE OF PUNJAB

Mr. Yaseen Sethi, Advocate Mr. Yaseen Sethi, Advocate for the petitioner. Mr. Rahul Jindal, AAG Punjab. Mr. Rahul Jindal, AAG Punjab. ***** RUPINDERJIT CHAHAL, J (ORAL) RUPINDERJIT CHAHAL, J (ORAL)

1. The present Criminal Revision petition is directed The present Criminal Revision petition is directed The present Criminal Revision petition is directed against the impugned order dated 09.03.2026 passed by the against the impugned order dated 09.03.2026 passed by against the impugned order dated 09.03.2026 passed by Learned Special Judge, Gurdaspur, whereby the application Learned Special Judge, Gurdaspur, whereby the application Learned Special Judge, Gurdaspur, whereby the application Learned Special Judge, Gurdaspur, whereby the application filed by the petitioner under Section 167(2) of CrPC (now filed by the petitioner under Section 167(2) of CrPC (now filed by the petitioner under Section 167(2) of CrPC (now filed by the petitioner under Section 167(2) of CrPC (now Section 187 BNSS) seeking grant of default bail in FIR No.29, Section 187 BNSS) seeking grant of default bail in FIR No.29, Section 187 BNSS) seeking grant of default bail in FIR No.29, Section 187 BNSS) seeking grant of default bail in FIR No.29, 9 of dated 07.05.2025, registered under Sections 22, 25, 29 of dated 07.05.2025, registered under Sections 22, 25, 2 dated 07.05.2025, registered under Sections 22, 25, 2 NDPS Act at Police Station State NDPS Act at Poli Special Operation Cell, ce Station State Special Operation Cell, District Amritsar has been dismissed. District Amritsar has been dismissed. District Amritsar has been dismissed.

2. Learned counsel for the petitioner submits that the Learned counsel for the petitioner submits that the Learned counsel for the petitioner submits that the petitioner was arrested on 07.05.2025 and was remanded to petitioner was arrested on 07.05.2025 and was remanded to petitioner was arrested on 07.05.2025 and was remanded to petitioner was arrested on 07.05.2025 and was remanded to judicial custody on 08.05.2025. Thereafter, he remained judicial custody on 08.05.2025. Thereafter, he remained judicial custody on 08.05.2025. Thereafter, he remained judicial custody on 08.05.2025. Thereafter, he remained nuously incarcerated without the filing of the challan continuously incarcerated without the filing of the challan nuously incarcerated without the filing of the challan nuously incarcerated without the filing of the challan PUNEET SHARMA 2026.05.06 09.24 I attest to the accuracy and authenticity of this order/judgment 783 of 2026(O&M) CRR-783 of 2026(O&M) -2- within the statutory period. It is submitted that 180 days from within the statutory period. It is submitted that 180 days from within the statutory period. It is submitted that 180 days from within the statutory period. It is submitted that 180 days from the date of first remand expired on 03.11.2025, and it is an the date of first remand expired on 03.11.2025, and it is an the date of first remand expired on 03.11.2025, and it is an the date of first remand expired on 03.11.2025, and it is an admitted position that no challan was filed within the said admitted position that no challan was filed within the said admitted position that no challan was filed within the said admitted position that no challan was filed within the said er submits that the prosecution had sought period. He further submits that the prosecution had sought er submits that the prosecution had sought period. He furth extension of time to file the challan, which was granted extension of time to file the challan, which was granted extension of time to file the challan, which was granted extension of time to file the challan, which was granted without issuing notice to the petitioner. The said order has without issuing notice to the petitioner. The said order has without issuing notice to the petitioner. The said order has without issuing notice to the petitioner. The said order has accused been declared null and void by this Court, and the co-accused been declared null and void by this Court, and the co been declared null and void by this Court, and the co e order dated 05.02.2026 has been granted default bail vide order dated 05.02.2026 e order dated 05.02.2026 has been granted default bail vid of 2025 by this Court. It is contended passed in CRR-3088 of 2025 by this Court. It is contended of 2025 by this Court. It is contended passed in CRR that the petitioner, acting with due diligence and being that the petitioner, acting with due diligence and being that the petitioner, acting with due diligence and being that the petitioner, acting with due diligence and being accused, filed an application on similarly situated to the co-accused, filed an application on accused, filed an application on similarly situated to the co e was 16.02.2026 for grant of default bail; however, the same was 16.02.2026 for grant of default bail; however, the sam 16.02.2026 for grant of default bail; however, the sam dismissed by the learned trial Court. Hence, it is prayed that dismissed by the learned trial Court. Hence, it is prayed that dismissed by the learned trial Court. Hence, it is prayed that dismissed by the learned trial Court. Hence, it is prayed that the present petition be allowed and the petitioner be released the present petition be allowed and the petitioner be released the present petition be allowed and the petitioner be released the present petition be allowed and the petitioner be released on default bail. on default bail.

3. On the other hand, learned State counsel has On the other hand, learned State counsel has On the other hand, learned State counsel has already filed a status report in the matter and, while relying already filed a status report in the matter and, while re already filed a status report in the matter and, while re upon the same, has opposed the present petition. It is upon the same, has opposed the present petition. It is upon the same, has opposed the present petition. It is upon the same, has opposed the present petition. It is - submitted that the claim of the petitioner of parity with the co submitted that the claim of the petitioner of parity with the co- submitted that the claim of the petitioner of parity with the co accused, who have been granted default bail by this Court, is accused, who have been granted default bail by this Court, is accused, who have been granted default bail by this Court, is accused, who have been granted default bail by this Court, is misconceived, as those petitioners had filed applications for misconceived, as those petitioners had filed applications for misconceived, as those petitioners had filed applications for misconceived, as those petitioners had filed applications for t bail prior to the filing of the challan, i.e., before default bail prior to the filing of the challan, i.e., before t bail prior to the filing of the challan, i.e., before t bail prior to the filing of the challan, i.e., before

24.11.2025. In contrast, the present petitioner admittedly filed 24.11.2025. In contrast, the present petitioner admittedly filed 24.11.2025. In contrast, the present petitioner admittedly filed 24.11.2025. In contrast, the present petitioner admittedly filed his application for default bail only on 16.02.2026, i.e. much his application for default bail only on 16.02.2026, i.e. much his application for default bail only on 16.02.2026, i.e. much his application for default bail only on 16.02.2026, i.e. much after the filing of challan. It is further submitted that it is a after the filing of challan. It is further submitted that it is a after the filing of challan. It is further submitted that it is a after the filing of challan. It is further submitted that it is a d position of law that once the challan has been filed and settled position of law that once the challan has been filed and d position of law that once the challan has been filed and d position of law that once the challan has been filed and PUNEET SHARMA 2026.05.06 09.24 I attest to the accuracy and authenticity of this order/judgment 783 of 2026(O&M) CRR-783 of 2026(O&M) -3- the right to default bail has not been exercised by the accused the right to default bail has not been exercised by the accused the right to default bail has not been exercised by the accused the right to default bail has not been exercised by the accused prior thereto, such right stands extinguished. Learned State prior thereto, such right stands extinguished. Learned State prior thereto, such right stands extinguished. Learned State prior thereto, such right stands extinguished. Learned State counsel, therefore, submits that no interference is called for in counsel, therefore, submits that no interference is called for in counsel, therefore, submits that no interference is called for in counsel, therefore, submits that no interference is called for in der passed by the learned trial Court, and the present the order passed by the learned trial Court, and the present der passed by the learned trial Court, and the present der passed by the learned trial Court, and the present petition is liable to be dismissed. petition is liable to be dismissed.

4. I have heard learned counsel for the parties and I have heard learned counsel for the parties and I have heard learned counsel for the parties and he record with their able assistance. The issue have perused the record with their able assistance. The issue he record with their able assistance. The issue have perused t involved in the present petition pertains to the right of the involved in the present petition pertains to the right of the involved in the present petition pertains to the right of the involved in the present petition pertains to the right of the petitioner to be released on default bail under Section 167(2) petitioner to be released on default bail under Section 167(2) petitioner to be released on default bail under Section 167(2) petitioner to be released on default bail under Section 167(2) Cr.P.C. (now 187 BNSS). It is not in dispute that though the Cr.P.C. (now 187 BNSS). It is not in dispute that though the Cr.P.C. (now 187 BNSS). It is not in dispute that though the Cr.P.C. (now 187 BNSS). It is not in dispute that though the within the statutory period, the petitioner challan was not filed within the statutory period, the petitioner within the statutory period, the petitioner challan was not filed did not avail of his right to seek default bail prior to the filing did not avail of his right to seek default bail prior to the filing did not avail of his right to seek default bail prior to the filing did not avail of his right to seek default bail prior to the filing of the challan. Rather, the application for grant of default bail of the challan. Rather, the application for grant of default bail of the challan. Rather, the application for grant of default bail of the challan. Rather, the application for grant of default bail was admittedly filed by the petitioner before the learned trial was admittedly filed by the petitioner before the learned trial was admittedly filed by the petitioner before the learned trial was admittedly filed by the petitioner before the learned trial .2026, i.e., much after the filing of the challan Court on 16.02.2026, i.e., much after the filing of the challan .2026, i.e., much after the filing of the challan Court on 16.02 on 24.11.2025. on 24.11.2025.

5. It is a settled proposition of law that the right to It is a settled proposition of law that the right to It is a settled proposition of law that the right to default bail is an indefeasible right, however, the same must default bail is an indefeasible right, however, the same must default bail is an indefeasible right, however, the same must default bail is an indefeasible right, however, the same must be exercised before the filing of the challan. Once the challan be exercised before the filing of the challan. Once the challan be exercised before the filing of the challan. Once the challan be exercised before the filing of the challan. Once the challan d and the accused has not availed of such right, the is filed and the accused has not availed of such right, the d and the accused has not availed of such right, the d and the accused has not availed of such right, the same stands extinguished. In this regard, reference may be same stands extinguished. In this regard, reference may be same stands extinguished. In this regard, reference may be same stands extinguished. In this regard, reference may be made to the judgment of the Constitution Bench of the made to the judgment of the Constitution Bench of the Constitution Bench of the Hon’ble Supreme Court in Sanjay Dutt v. State, 1994 (5) Hon’ble Supreme Court in Sanjay Dutt v. State, 1994 (5) Sanjay Dutt v. State, 1994 (5) the right under Section ; wherein it was held that the right under Section ; wherein it was held that SCC 410; wherein it was held that 167(2) Cr.P.C. ceases to be enforceable once the challan is 167(2) Cr.P.C. ceases to be enforceable once the challan is 167(2) Cr.P.C. ceases to be enforceable once the challan is 167(2) Cr.P.C. ceases to be enforceable once the challan is filed. The relevant paragraph is reproduced below: filed. The relevant paragraph is reproduced below: filed. The relevant paragraph is reproduced below: PUNEET SHARMA 2026.05.06 09.24 I attest to the accuracy and authenticity of this order/judgment 783 of 2026(O&M) CRR-783 of 2026(O&M) -4- “52. We have no doubt that the common stance before us “52. We have no doubt that the common stance before us “52. We have no doubt that the common stance before us “52. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be of the nature of indefeasible right of the accused to be of the nature of indefeasible right of the accused to be of the nature of indefeasible right of the accused to be released on bail by virtue of Section released (4)(bb) is based on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that on a correct reading of the principle indicated in that on a correct reading of the principle indicated in that on a correct reading of the principle indicated in that The indefeasible right accruing to the accused decision. The indefeasible right accruing to the accused The indefeasible right accruing to the accused decision. to the filing in such a situation is enforceable only prior to the filing in such a situation is enforceable only prior in such a situation is enforceable only prior and it does not survive or remain of the challan and it does not survive or remain and it does not survive or remain of the challan enforceable on the challan being filed, if already not enforceable on the challan being filed, if already not enforceable on the challan being filed, if already not enforceable on the challan being filed, if already not Once the challan has been filed, the question availed of. Once the challan has been filed, the question Once the challan has been filed, the question availed of. of grant of bail has to be considered and decided only of grant of bail has to be considered and decided only of grant of bail has to be considered and decided only of grant of bail has to be considered and decided only rits of the case under the with reference to the merits of the case under the rits of the case under the with reference to the me provisions relating to grant of bail to an accused after provisions relating to grant of bail to an accused after provisions relating to grant of bail to an accused after provisions relating to grant of bail to an accused after . The custody of the accused after the filing of the challan. The custody of the accused after . The custody of the accused after the filing of the challan the challan has been filed is not governed by Section the challan has been filed is not governed by Section the challan has been filed is not governed by Section the challan has been filed is not governed by Section ifferent provisions of the Code of Criminal 167but different provisions of the Code of Criminal ifferent provisions of the Code of Criminal 167 If that right had accrued to the accused but it Procedure. If that right had accrued to the accused but it If that right had accrued to the accused but it Procedure. remained unenforced till the filing of the challan, then remained unenforced till the filing of the challan, then remained unenforced till the filing of the challan, then remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it there is no question of its enforcement thereafter since it there is no question of its enforcement thereafter since it there is no question of its enforcement thereafter since it s filed because is extinguished the moment challan is filed because is extinguished the moment challan i is extinguished the moment challan i Criminal Procedure Code, 1973 ceases to Section 167 Criminal Procedure Code, 1973 ceases to Criminal Procedure Code, 1973 ceases to Section apply. ………………….” ………… emphasis supplied ………… emphasis supplied ………… emphasis supplied Similar view has been reiterated by the Hon’ble Supreme Similar view has been reiterated by the Hon’ble Supreme Similar view has been reiterated by the Hon’ble Supreme Similar view has been reiterated by the Hon’ble Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, Uday Mohanlal Acharya v. State of Maharashtra, Acharya v. State of Maharashtra, 2001 AIR (SC) 1910; and more recently in 2001 AIR (SC) 1910; and more recently in M. Ravindran v. M. Ravindran v. PUNEET SHARMA 2026.05.06 09.24 I attest to the accuracy and authenticity of this order/judgment 783 of 2026(O&M) CRR-783 of 2026(O&M) -5- Intelligence Officer, Directorate of Revenue Intelligence, Intelligence Officer, Directorate of Revenue Intelligence, Intelligence Officer, Directorate of Revenue Intelligence, Intelligence Officer, Directorate of Revenue Intelligence,