Case Note & Summary
Background: The appeal arose from an order of the High Court dated 19.4.1994 rejecting the bail application of the appellant, who was accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellant had been arrested on 8.11.1993. Facts: A petition for bail on merits was rejected by the City Sessions Judge on 4.2.1994 in view of Section 37 of the NDPS Act and the Supreme Court decision in Narcotics Control Bureau v. Kishan Lal. The High Court similarly rejected the bail prayer on 19.4.1994. It was an admitted position that the charge-sheet was filed on 23.5.1994, and after that the appellant remained in custody on the basis of remand orders under other provisions of the Code of Criminal Procedure. Legal Issues: The core legal question was whether an accused under the NDPS Act, who was entitled to default bail under proviso (a) to Section 167(2) of the Code of Criminal Procedure because the statutory period for investigation had expired, could claim that right after the charge-sheet had been filed, particularly in light of Section 37 of the NDPS Act which restricts bail. Arguments: The appellant contended that the statutory period prescribed by proviso (a) to sub-section (2) of Section 167 CrPC had expired, and therefore he should have been released on bail without application of Section 37 NDPS Act. However, he did not press the appeal on merits but argued that the City Sessions Judge should have held that there were reasonable grounds for believing that the appellant was not guilty under Section 37(1)(b)(ii) NDPS Act. The respondent relied on Section 37 NDPS Act and contended that once the charge-sheet was filed, the default bail right lapsed. Court's Analysis: The Supreme Court noted that in Union of India v. Thamisharasi this Court had held that Section 37 NDPS Act does not exclude the application of the proviso to Section 167(2) CrPC. However, the crucial issue was whether the right to default bail survived after filing of the charge-sheet. The Court relied on the Constitution Bench decision in Sanjay Dutt v. State through C.B.I. Bombay (II), which held that the indefeasible right to be released on bail in default of completion of investigation and filing of challan within the time allowed enures only from the time of default till the filing of the challan and does not survive or remain enforceable after the challan is filed. Once the challan is filed, bail is governed by the provisions relating to the grant of bail applicable at that stage. Decision: Accordingly, the appeal was dismissed. The Court directed that the trial of the appellant be expedited.
Headnote
A) Criminal Procedure - Default Bail under Section 167(2) CrPC - Applicability to NDPS Offences - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 37; Code of Criminal Procedure, 1973, Section 167(2) proviso (a) - The issue was whether the proviso to Section 167(2) CrPC, providing for default bail on expiry of investigation period, applies to accused under NDPS Act despite Section 37 restricting bail. The Court relied on Union of India v. Thamisharasi holding that Section 37 NDPS Act does not exclude the proviso to Section 167(2) CrPC. Held that the statutory right to default bail is available to NDPS accused (Paras 1-2). B) Criminal Procedure - Lapse of Default Bail Right after Filing of Charge-Sheet - Section 167(2) proviso (a) CrPC - The appellant was entitled to default bail on expiry of statutory period but did not apply before charge-sheet was filed on 23.5.1994. The Court followed Sanjay Dutt v. State (II) which held that the indefeasible right to default bail enures only from default until filing of challan and does not survive after challan is filed. Held that once charge-sheet is filed, bail is governed by normal provisions, so appeal dismissed (Paras 1-2).
Issue of Consideration
Whether an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 who was entitled to default bail under proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 but did not apply before filing of the charge-sheet can claim that right after the charge-sheet was filed, considering Section 37 of the NDPS Act.
Final Decision
Appeal dismissed. Court held that though appellant was entitled to default bail under Section 167(2) proviso (a) CrPC before filing of charge-sheet, he did not exercise that right in time. After charge-sheet was filed on 23.5.1994, the right to default bail lapsed and bail was to be governed by normal provisions including Section 37 NDPS Act. Directed trial to be expedited.
Law Points
- Default bail under proviso (a) to Section 167(2) CrPC is available to accused under NDPS Act
- Section 37 NDPS Act does not exclude the proviso to Section 167(2) CrPC
- the indefeasible right to default bail enures only from the time of default till filing of challan and does not survive after challan is filed
- once charge-sheet is filed
- bail is governed by normal provisions including Section 37 NDPS Act
- accused must exercise the right to default bail within the time allowed
- if released on default bail
- accused cannot be rearrested on mere filing of charge-sheet
