The right to default bail under Section 167(2) of the Cr.P.C. is an indefeasible right that cannot be suspended, even during a pandemic, and takes precedence over the State's right to carry out an investigation and submit a charge sheet.

JUDGMENT

This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail to the petitioner/A-3 in connection with Crime No.124 of 2020 of Paderu Police Station, Visakhapatnam District, for the offence punishable under Section 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).

2. The case of prosecution is that the on 30.12.2020 on receipt of credible information about possession and transportation of dry ganja, the respondent police along with staff and mediators went to Ganjigadda road, Minumuluru Panchayath, Paderu Mandal, Visakhapatnam District and found one white coloured lorry bearing No.CG 04 HR 8764, arrested A-1 and A-2 and seized 922 KGs of dry ganja in 19 gunny bags under the cover of a mediators report. Basing on the said report, the present crime was registered. A-1 and A-2 confessed about the role of the present petitioner in the commission of offence and on 06.01.2021 the petitioner was arrested and since then he has been languishing in jail.

3. Heard Ms.Vinodin Ruth, learned counsel for the petitioner and learned Assistant Public Prosecutor for the respondent-State.

4. Learned counsel for petitioner submits that the petitioner was arrested on 06.01.2021 and ever since he has been languishing in jail. The application filed by the prosecution seeking extension of time was dismissed by the Court below on 20.07.2021. Even after lapse of 180 days, police failed to file charge sheet. Hence, he is entitled for default bail.

5. Learned Assistant Public Prosecutor does not dispute the fact that the application filed seeking extension of time was dismissed. However, it is submitted that huge quantity of 922 KGs was seized, further investigation is pending, he is not entitled for default bail.

6. Section 36(A) of the NDPS Act reads thus:

36A. Offences triable by Special Courts.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub- section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers— (i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offenc