IMPORTANT POINT
Right to get release on bail would get extinguished under Section 167(2) CrPC if charge-sheet was filed before release of accused even though bail order had been passed on default.

JUDGMENT

Ashim Kumar Banerjee, J.—Short question involved herein, is as to whether the learned Magistrate could withhold release of the accused even after granting of bail.

2. The facts reveal, petitioner accused was charged with an offence Section 20(b)(1) of Narcotic Drugs and Psychotropic Substances Act (NDPS Act). He was in custody for about sixty days. Neither the prosecution submitted charge-sheet nor he was released on bail. After the statutory period was over petitioner applied for bail on February 25, 2011. The learned Additional Sessions Judge, 6th Court Barasat acting as Special Judge under NDPS Act passed an order observing that the accused was in custody for more than sixty days. Since no charge sheet was filed by the prosecution the petitioner should be released on bail bond furnishing PR bond of rupees thirty thousand with one local surety with like amount on condition that he would not commit any .offence while on bail or tamper with the prosecution case. February 26 and February 27 were holidays. On February 28, 2011 the prosecution submitted charge sheet without any Chemical Examination Report. Accused was produced from custody when the learned Judge directed his production on April 21, 2011. On the same day at 3.15 p.m. the accused submitted PR bond of rupees thirty thousand in terms of the earlier order dated February 25, 2011. The learned Judge refused to release him on bail by recording that since charge-sheet had been filed the matter would be heard as to whether the bail bond would be accepted or not.

3. On March 1, 2011 the matter was heard at length on the issue of release. The petitioner contended before the learned Judge that once he was enlarged on bail the Court could not withhold his release particularly when he complied with the formalities by furnishing of PR bond as directed by the learned Judge. The learned Judge however recorded that before the PR bond was submitted the charge-sheet had been filed without Chemical Examinations Report. The learned Judge considered the Apex Court; decision in the case of 2001 Criminal Law Journal Page1832 (Supreme Court) Uday Mohanlal Acharys v. State of Maharashtra.1 The learned Judge considered Section 167(2) of the Criminal Procedure Code and ultimately held that bail bond could not be accepted since charge-sheet had been submitted prior to submission of bail bond. The learned Judge rejected the contention of the petitioner that the charge-sheet without a Chemical Analysis Report was nonest in the eye of law. The learned Judge observed. Ganja (cannabis) being “a natural drug” and not a manufactured drug visual examination was sufficient.

4. Being aggrieved by the judgment and order of the learned Special Judge the petitioner filed the instant application which was heard by me on the above mentioned dates.

5. Mrs. Rupna Bhattacharya learned Counsel appearing for the petitioner contended that the once the accused was enlarged on bail and no time was fixed for furnishing a bail bond the Court below was due bound to accept the same as and when submitted. By not accepting the bond the learned Judge was not entitled to withhold release of the accused, also contended that under the Narcotic Control Bureau Guidelines Chemical Analysis was a must while charging accused under NDPS Act. Hence, submission of charge-sheet without having Chemical Analysis Report was nonest in the eye of law and the learned Judge was not entitled to accept the same. She also contended that once bail was granted, unless it was cancelled the accused was entitled to be released and the Court was not entitled to withhold his release.

6. To support her contention, she relied on the following decisions,

(i) Raghubir Singh and Others v. State of Bihar2;

(ii) Gaunter Edwin Kircher v. State of Goa3;

(iii) Valsala v. State of Kerala4;

(iv) Pilli Dilli Dora v. State of Orissa5;

(v) Balbir Singh v. State of Orissa6;

(vi) Nirmal Chandra Sahoo v. State of Orissa7;

(vii) Khet Singh v. Union of