The right to default bail under Section 167(2) Cr.P.C. is an indefeasible right of the accused and cannot be suspended even during a pandemic situation.

Headnote:
DEFAULT BAIL - SECTION 167(2) CR.P.C. - SECTION 36A NDPS ACT - SUMMARY TRIAL - INTERPRETATION - RIGHT TO BAIL - PERSONAL LIBERTY - ARTICLE 21 OF THE CONSTITUTION OF INDIA - COVID-19 PANDEMIC - RIGHT TO LIBERTY TAKES PRECEDENCE OVER RIGHT TO INVESTIGATE - AMBIGUITY IN PENAL STATUTE - INTERPRETATION IN FAVOUR OF ACCUSED - INDEFEASIBLE RIGHT TO BAIL - CONDITIONS FOR BAIL.
Fact of the Case:

Petitioner, accused of possessing 25 kgs of ganja, was arrested on 02.07.2021 and languished in jail for over 190 days without a charge sheet being filed. The prosecution sought to deny bail under Section 37 of the NDPS Act, arguing that the quantity of contraband exceeded the commercial quantity.
Finding of the Court:

The court held that the petitioner was entitled to statutory bail under Section 167(2) Cr.P.C. as the charge sheet was not filed within the statutory period of 180 days and the extension petition filed by the prosecution was dismissed.
Issues: 1. Whether the petitioner is entitled to default bail under Section 167(2) Cr.P.C. despite the prohibition under Section 37 of the NDPS Act? 2. Whether the right to bail can be suspended during a pandemic situation?
Ratio Decidendi: 1. The court held that the right to default bail under Section 167(2) Cr.P.C. is an indefeasible right of the accused as laid down by the Hon'ble apex Court in catena of cases. 2. The court relied on the judgment of the Hon'ble apex Court in S.Kasi v. State 2020 SCC OnLine SC 529, wherein it was observed that the indefeasible right to default bail under Section 167 (2) Cr.P.C. is an integral part of the right to personal liberty under article 21 of the Constitution, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently.
Final Decision: The court allowed the petition and granted regular bail to the petitioner, subject to conditions.

JUDGMENT

D. Ramesh, J. - 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.91 of 2021 of Golugonda Police Station, Visakhapatnam District for the offences under Sections.20(b)(ii)(c) r/w 8(c) of Narcotic Drugs and Psychotropic Substances act, 1985 (for short 'NDPS act').

2. Heard learned counsel for the petitioner and the learned assistant Public Prosecutor for the respondent-State.

3. The case of the prosecution is that on receipt of reliable information about illegal transportation of Ganja, police reached to Yetigavirammapeta Village and while conducting vehicle check they found accused coming with luggage bags. The police stopped them and seized 25 kgs of ganja under the cover of mediators report. Basing on the same, the present case is registered.

4. Learned counsel for the petitioner submits that the petitioner is a-3 in the present crime and no contraband is seized from him. Only on the basis of the confessional statements made by a-1 and a-2 the petitioner is implicated in the crime. The petitioner was arrested on 02.07.2021 and from more than 190 days he has been languishing in jail. The respondent has not filed charge sheet till now. Therefore, he is entitled for default bail.

5. Learned assistant Public Prosecutor submits that the contraband seized from the petitioner is 25 kgs which is more than a commercial quantity. Hence, there is a prohibition under Section 37 of NDPS act for grant of bail. The extension petition filed by them was dismissed. Hence, in view of the prohibition in the act, the petitioner is not entitled for grant of 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 authorised 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 offence under this act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing cont

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