Point of law: Requirement of such notice to the accused before granting the extension of time for completing the investigation is not merely a written notice to the accused, rather production of the accused at the relevant time in the court informing him that the question of extension of the period for completing the investigation is alone sufficient for the purpose.

ORDER :

Lalitha Kanneganti, J.

1. The criminal petition is filed under Sections 437 & 439 of Cr.P.C. seeking regular bail to the petitioner/A-4 in connection with F. No. DRI/HZU/VRU/48/ENQ-01(INT-01)/2020 dated 26.02.2020 on the file of Directorate of Revenue Intelligence, Regional Unit, Visakhapatnam for the offence punishable under Sections 8(c), 20 and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act").

2. The case of the prosecution is that on 26.02.2020 basing on a specific intelligence input that Ganja is being illicitly transported in TATA goods carriage bearing No. OD 02 BD 4155 by the petitioner and other persons, which is coming from Narsipatnam side and going towards Orissa and some persons are also piloting the said vehicle in TATA Indigo Car bearing No. OD 02 U 7123, the officers of DRI mounted surveillance at NAD Junction, stopped the Indigo Car and detained the inmates. They also stopped TATA goods carriage bearing No. OD 02 BD 4155 and found the petitioner and 2 others and on enquiry, they admitted that Ganja was loaded in the said vehicle. On verification, they found total 1638.68 KGs of Ganja.

3. Heard Sri N. Ashwani Kumar, learned counsel for the petitioner and the learned Public Prosecutor for respondent-State.

4. Learned counsel for the petitioner would submit that the petitioner is the driver of Tata Indigo Car, which was owned by his father and the petitioner has no knowledge about the illegal activity committed by the accused. The petitioner does not belong either to the area or the persons alleged offence and there is no remote scope that the petitioner in any way interfere either with the investigation or with the witnesses. He further submits that the petitioner is in judicial custody from 27.02.2020 and more than 150 days elapsed, as such he is entitled for default bail. In this connection, he relied upon the order of this Court in Crl. R. No. 3124 of 2020 dated 20.06.2020. Learned counsel submits that in the said order this Court taking into consideration several judgments of the Hon'ble Apex Court held that if the charge sheet is not filed within the period contemplated under Section 167 of Cr.P.C., the accused is entitled for default bail.

5. Learned counsel for petitioner relied on the judgment of the Apex Court in Rakesh Kumar Paul Vs. State of Assam, (2017) 15 SCC 67 held that keeping the application for default bail pending for some time to enable filing of charge sheet was strongly discouraged and no subterfuge should be resorted to defeat the indefeasible right of the accused. He also relied on the judgment of the Hon'ble Apex Court in Nikesh Tarachand Shah Vs. Union of India and another, AIR 2017 SC 550, and submitted that the provision of the NDPS Act laying twin condition is in pari materia with the provisions of Prevention of Money Laundering Act, 2002 and the Hon'ble Apex Court has held that the twin conditions are unconstitutional.

6. Learned counsel for petitioner also relied on the judgment of Hon'ble Apex Court in Sujit Tiwari Vs. State of Gujarat and State of Kerala Vs. Rajesh (Criminal Appeal Nos. 154-157 of 2020) dated 24.01.2020). Learned counsel submits that there is no strait-jacket formula that in each and every case if the contraband seized is of commercial quantity, bail cannot be granted.

7. Learned counsel for petitioner mainly contends that even if the contraband seized is of commercial quantity, still the bail application has to be considered in the light of Section 37 of NDPS Act, according to which, the burden lies on the Public Prosecutor to place on record the material to show that the accused is a habitual offender, if he is enlarged on bail, he is likely to commit the offence and other reasonable evidence connected the accused to the commission of the crime. Unless and until such material is placed before the Court, the Public Prosecutor cannot oppose the bail application on the sole ground that the contraband seized is of commercial quan