IMPORTANT POINTS
1. Section 37 of the NDPS Act does not exclude the application of the proviso to 167(2) of the Code, even in respect of persons who are accused of offences under the NDPS Act.
2. If the accused files application for ‘default bail’ when the indefeasible right for default bail accrues due to non- completion of the investigation and filing of the charge- sheet within the time prescribed by proviso to Section 167(2) of the Code, the accused is entitled to ‘default bail’ even if the final report is filed subsequent to the filing of the application by the accused.

JUDGMENT

B. Sudheendra Kumar, J.

The petitioner is the sole accused in Crime No.23 of 2019 of Excise Circle Office, Kollam registered for the offence punishable under Section 8(c) read with Section 20(b)(ii)B of NDPS Act.

2. The prosecution allegation is that on 23.5.2019 at about 5.10 p.m., the petitioner was found in possession of 1.250 Kg of ganja, for the purpose of sale at a place on the side of S.V. Talkies Junction - Kunnemukku public road, in contravention of the provisions of the NDPS Act.

3. The petitioner was arrested from the spot and ever since he has been in custody.

4. Heard.

5. The learned Public Prosecutor has opposed the application.

6. The learned counsel for the petitioner has argued that since the petitioner was arrested on 23.5.2019, the petitioner is entitled to be released on bail under proviso to Section 167(2) of the Code, as the investigation was not complete within the period stipulated under proviso to Section 167(2) of the Code. The learned counsel for the petitioner has further argued that even though the petitioner filed Crl.M.C. No.1394 of 2019 before the filing of the final report, the court below dismissed the said Crl.M.C. stating that since the final report was filed before the court before disposing of the said Crl.M.C., the petitioner was not entitled to ‘default bail’ and in the said circumstances, the order passed by the court below cannot be sustained.

7. The learned Public prosecutor, on the other hand, has argued that since the offence involved in this case is an offence under the NDPS Act, there is inhibition under Section 37 of the NDPS Act in granting bail even under proviso to Section 167(2) of the Code and in the said circumstances, the petitioner is not entitled to get ‘default bail’. It has been further argued by the learned Public Prosecutor that since the final report was filed before passing the order in Crl.M.C. 1394/2019, the indefeasible right of the petitioner to get ‘default bail’ under proviso to Section 167(2) of the Code got extinguished and hence, the court below was perfectly justified in denying bail to the petitioner.

8. The question as to whether Section 37 of the NDPS Act excludes the application of Section 167 of the Code was considered by the Apex Court in Union of India v. Thamisharasi [JT 1995(4) (SC) 253]. The Apex Court held that Section 37 of the NDPS Act does not exclude the application of the proviso to 167(2) of the Code, even in respect of persons who are accused of offences under the NDPS Act. The three Judge Bench of the Apex Court in Bipin Shantilal v. State of Gujarat (AIR 1996 SC 2897) quoted the above ratio with approval. In view of the above legal position, there can be no dispute that the accused in a case registered for the offence under the provisions of the NDPS Act is entitled to get ‘default bail’ under proviso to Section 167 (2) of the Code as Section 37 of the NDPS Act does not exclude the application of proviso to Section 167(2) of the Code. In the said circumstances, the argument advanced by the learned Public Prosecutor in this regard cannot be correct.

9. The “indefeasible right” of the accused to be released on bail in accordance with the proviso to Section 167(2) of the Code in default of completion of the investigation and filing of the final report within the time allowed is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the final report and it does not survive or remain enforceable after filing of the final report. The Three Judge Bench of the Apex Court in Rakesh Kumar Paul v. State of Assam (AIR 2017 SC 3948) relied on the decision of the Constitution Bench of the Apex Court in Sanjay Dutt v. State through CBI, Bombay [1994 (5) SCC 410] and held in paragraph 36 thus:

“36. While dealing with this common stance, the Constitution Bench in Sanjay Dutt made it clear in paragraph 48 of the Report that the indefeasible right accruing to the accused is enforceab