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ORISSA HIGH COURT
S.K. Sahoo, J.
Rajendar Kakodiya @ Rajendra Kakodia and Anr. – Petitioners
versus
State of Odisha – Opp. Party
BLAPL No.1197 of 2021
Decided on 18.10.2021
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 36A – Default bail – Extension of period of limitation – Mere service of petition on Counsel for petitioners without any intimation to him as to on what date such petition is fixed for hearing is not sufficient compliance of principle of natural justice – Even though sub-section (4) of Section 36-A of N.D.P.S. Act does not specifically provide for issuance of notice to accused on report of Public Prosecutor before granting extension, but it must be read into provision both in interest of accused and prosecution as well as for doing complete justice between parties and since there is no prohibition to issuance of such notice to accused, no extension shall be granted by Special Court without such notice – Extension of time granted by Trial Court to Investigating Officer to complete investigation was without affording reasonable opportunity of hearing either to petitioners or their Counsel representing them and as such, same is illegal and unjustified. (Para 12)
(B) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Extension of period of limitation – Order for release on bail under proviso (a) of Section 167(2) of Cr.P.C. is an order on default on part of prosecution to file charge-sheet within prescribed period – It is a legislative command and not a judicial discretion of Court – An indefeasible right accrues in favour of accused for being released on bail on account of default by investigating agency in completing investigation within period prescribed – If an accused entitled to be released on bail under proviso (a) makes an application before Magistrate, there is no discretion left in Magistrate and only thing he is required to find out is whether specified period under statute has elapsed or not and whether a challan has been filed or not – Merits of case are not to be gone into while releasing accused on bail under proviso (a) to Section 167(2) of Cr.P.C. – When no final form was filed within extended period of ninety days granted for completion of investigation and no further extension application was filed, petitioners should have been informed of their right of default bail – There is nothing on record that Trial Court as well as Counsel for petitioners appearing for them in trial Court apprised petitioners of their valuable right of being released on default bail under Section 167(2) of Cr.P.C. – It would be unfair to petitioners to keep them in custody in such a situation – Bail granted. (Paras 13 and 14)
Result: Bail Application allowed.
JUDGMENT
S.K. Sahoo, J.—This is an application for bail under section 439 of Cr.P.C. filed by Rajendar Kakodiya @ Rajendra Kakodia and Sarup Uikey @ Swarup Ulkey in connection with Muniguda P.S. Case No.131 of 2020 corresponding to T.R. Case No.17 of 2020 pending in the Court of learned Addl. Sessions Judge-cum-Special Judge, Gunupur in which charge sheet has been submitted for alleged commission of offences under sections 20(b)(ii)(C), 25, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’).
The prayer for bail of the petitioners has been rejected by the learned Addl. Sessions Judge -cum- Special Judge, Gunupur vide order dated 04.12.2020.
2. The prosecution case, as per the first information report lodged by Chandrama Sabar, S.I. of Police, Muniguda police station, in short, is that on 03.10.2019 on receipt of reliable information by the I.I.C., Muniguda police station that one C.G. number truck loaded with rice bran/husk escorted by one Maruti Alto car and followed by a motor cycle was coming from Danga Sorada and going towards Raipur, as per the direction of the I.I.C., the informant and other police officials, in order to detect the vehicle, checked the vehicles at Dekupuli Chowk in presence of the witnesses and at 12.55 p.m., they noticed the C.G. number truck coming in a high speed being piloted by one blue colour Maruti Alto Car and escorted by one motor cycle. When the informant signaled the drivers of those vehicles to stop, they accelerated the speed but the police team chased the vehicles and could be able to detain the vehicles at Dhobagudi Chowk at 01.10 p.m. The petitioner no.1 Rajendra Kakodia was found to be driving the truck bearing registration No. CG 04 MD-9036 and the petitioner no.2 Swarup Ulkey was the helper of the truck. In Maruti Alto Car as well as Hero Honda Splendor motor cycle, other accused persons were there, who disclosed their names and addresses. On search of Maruti Alto car as well as motor cycle, nothing incriminating was found in it, but smell of contraband ganja was found coming from the truck, which was searched in presence of the Executive Magistrate after complying all the formalities and eleven packets containing contraband ganja and 289 packets containing rice bran in plastic bags were found in the truck and on weighment, the gross weight of the contraband ganja available in those eleven packets came to 500 kg. 280 grams and after excluding the packing materials, the net weight of ganja came to be 498 kg., which were seized and sealed with the personal seal of the informant. The articles found from the personal possession of different accused persons were also seized in different seizure lists. The offending truck, Maruti Alto car, Hero Honda Splendor motor cycle and the rice bran packets were also seized as per different seizure lists and signatures of the accused persons and witnesses were obtained in the seizure lists. The brass seal of the informant was given in the zima of one Purna Chandra Gouda after executing proper zimanama. The petitioners and four co-accused persons were arrested and the informant returned to the police station with the accused persons, the seized articles and presented the written report before the Inspector in-charge and accordingly, Muniguda P.S. Case No. 131 dated 03.10.2020 was registered under section 20(b)(ii)(C), 25, 27-A and 29 of the N.D.P.S. Act.
3. The co-accused persons were produced in the Court of learned Special Judge, Gunupur on 04.10.2020 along with the seized contraband ganja packets. On the prayer of the Investigating Officer, the learned S.D.J.M. drew up two sample packets of fifty grams from each of the packets and sent it to R.F.S.L., Berhampur for chemical examination and opinion. The rest of the contraband ganja in eleven packets was kept in Court Malkhana, Gunupur.
The petitioners were not produced on 04.10.2020 with the other co-accused persons as they were tested positive for
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