IMPORTANT POINT
If an accused before filing of charge sheet has applied for bail and has offered to comply with the terms and conditions of bail, then it will be deemed that he has “availed of” his indefeasible right to be released on bail under the proviso (a)(ii) to Section 167(2) CrPC and it will remain enforceable even upon filing of the charge sheet.

JUDGMENT (ORAL)

Ashwani Kumar Singh, J.—Heard Mr. Manish Kumar, learned counsel for the petitioner and Mr. Mritunjay Kumar Gutam, learned Additional Public Prosecutor for the State.

2. By way of the present application preferred under Section 482 of the Code of Criminal Procedure (for short „the CrPC?), the petitioner has prayed for quashing of the order dated 08.02.2017 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Darbhanga in connection with Darbhanga Rail P.S. Case No.102 of 2016 giving rise to G.O.Case No.22 of 2016 registered for the offences under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances Act (for short „the NDPS Act?) whereby the application filed on behalf of the petitioner for compulsive bail has been rejected.

3. The facts of the case, in brief, is that thirteen Kg. ganja is alleged to have been recovered from the possession of the petitioner on 21st November, 2016. He was produced before the court on 22.11.2016 and was remanded to judicial custody on the same day. The period of detention of the petitioner of sixty days in jail expired on 21.01.2017. Thereafter, an application under Section 167(2)(a)(ii) of the CrPC for compulsive bail was filed on behalf of the petitioner on the ground that the investigating agency had failed to submit the police report under Section 173(2) of the CrPC in the court within the statutory period prescribed in law. The learned District and Sessions Judge, Darbhanga after hearing the parties on 23.01.2017, on the application filed under Section 167(2)(a)(ii) of the CrPC, adjourned the matter to 27th January, 2017. In the meantime, on 24.01.2017 at 2 p.m., the investigating officer filed the police report in the court. On 27.01.2017, the learned District and Sessions Judge, Darbhanga after taking cognizance of the offence transferred the case to the court of 1st Additional Sessions Judge-cum-Special Judge, Darbhanga. In the court of 1st Additional Sessions Judge-cum-Special Judge, Darbhanga, the charges were framed against the petitioner on 31st January, 2017. On 3rd February, 2017 the petitioner filed a fresh application whereby he had requested the court to enlarge him on bail in terms of Section 167(2)(a)(ii) of the CrPC. The said application dated 03.02.2017 was taken up for hearing on 8th February, 2017 and, on that date, after hearing the parties, the learned 1st Additional Sessions Judge-cum- Special Judge, Darbhanga passed the impugned order whereby the application filed on behalf of the petitioner for grant of compulsive bail has been rejected.

4. Mr. Manish Kumar, learned counsel appearing for the petitioner has submitted that since no order was passed by the learned Sessions Judge, Darbhanga on bail application dated 23.01.2017 filed by the petitioner under Section 167(2)(a)(ii) of the CrPC, another application was filed before the transferee court on 03.02.2017 stating the entire facts with a prayer to enlarge the petitioner on bail, as his application filed on 23.01.2017, under Section 167(2)(a)(ii) CrPC, was still pending. He has submitted that as the alleged recovery is of thirteen Kg. ganja, in terms of the provision prescribed under Section 20(b)(ii)(B) of the NDPS Act, the maximum punishment which can be awarded to the petitioner would be ten years. Similarly, for contravention in relation to the offence defined under Section 22 of the NDPS Act involving lesser than commercial quantity but greater than small quantity the maximum punishment which can be awarded is ten years. He has submitted that since the police failed to submit their report under Section 173(2) of the CrPC within sixty days, on 23rd January, 2017, the petitioner became entitled to be released on bail, as had filed application in the court of Sessions Judge in terms of the provision prescribed under Section 167(2)(a)(ii) of the CrPC.

5. Per contra, learned counsel for the State has submitted that the petitioner had filed the application under Section 1