Case Note & Summary
The petitioner, Swapnil Gaikwad, was arrested in connection with an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He filed a Criminal Writ Petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench, challenging the orders of the Judicial Magistrate First Class, Gangapur, and the Additional Sessions Judge, Vaijapur, which rejected his application for default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC). The petitioner argued that the charge sheet was not filed within the prescribed period of 60 days (as the offence involved commercial quantity, the period was 180 days under Section 36A(4) of the NDPS Act), and therefore he was entitled to default bail. The respondent-State opposed the petition, contending that the petitioner's custody was required for investigation under Section 27 of the Indian Evidence Act, 1872, to recover incriminating articles. The High Court analyzed the provisions of Section 167(2) CrPC and Section 27 of the Evidence Act. It held that the right to default bail is an indefeasible right that accrues upon the failure of the investigating agency to file the charge sheet within the statutory period. The court further held that Section 27 of the Evidence Act does not mandate that the accused be in police custody; it only requires that the information be received from a person in custody, which can be judicial custody. Therefore, the rejection of the default bail application was erroneous. The court allowed the petition, set aside the impugned orders, and directed that the petitioner be released on default bail on such terms and conditions as the trial court may impose.
Headnote
A) Criminal Procedure Code - Default Bail - Section 167(2) - Right to default bail accrues if charge sheet not filed within prescribed period - Accused cannot be remanded to police custody after filing of charge sheet for purpose of investigation under Section 27 of Evidence Act - Held that the right to default bail is indefeasible and cannot be defeated by seeking police custody after charge sheet (Paras 5-8). B) Evidence Act - Discovery of Fact - Section 27 - Custodial interrogation not mandatory for recovery of articles - Section 27 does not require that the accused be in police custody at the time of making the disclosure - Held that the provision only requires that the fact discovered be in consequence of information received from an accused in custody, but custody can be judicial custody as well (Paras 5-8). C) Narcotic Drugs and Psychotropic Substances Act - Bail - Section 37 - Rigorous conditions for bail under NDPS Act do not apply to default bail under Section 167(2) CrPC - Default bail is not a regular bail and is not subject to Section 37 restrictions - Held that the accused is entitled to default bail if charge sheet not filed within 60/180 days (Paras 5-8).
Issue of Consideration
Whether the courts below erred in rejecting the application for police custody remand of the accused after the charge sheet was filed, and whether the accused is entitled to default bail under Section 167(2) CrPC.
Final Decision
The High Court allowed the petition, set aside the impugned orders dated 06.01.2020 and the revisional order, and directed that the petitioner be released on default bail on such terms and conditions as the trial court may impose.
Law Points
- Section 27 Indian Evidence Act
- 1872 does not require custodial arrest
- Section 167(2) CrPC default bail
- police custody after charge sheet
- Article 226 and 227 Constitution of India
- NDPS Act Section 37
