IMPORTANT POINT
Default bail – Before any extension of time to complete investigation is granted, accused must be put on notice and permitted to have his say so as to be able to object to grant of extension.

JUDGMENT

Sant Parkash, J.—The aforesaid presence is recorded through video conferencing since proceedings are being conducted in virtual court.

2. With the consent of parties, application (Crl. Misc. No.1682 of 2021 In Crl. Revision No.1314 of 2021) for preponement of the date in the main petition is allowed and the petition is taken up for hearing and final disposal today itself.

3. Reply dated 14.12.2021 on behalf of respondent-State in Crl. Misc. No.M-48705 of 2021 is also taken on record.

4. This judgment shall dispose of aforementioned two petitions as they arise out of same FIR and involve similar facts and questions of law.

5. Criminal Revision No.1314 of 2021 has been preferred by the petitioner challenging order dated 25.10.2021 passed by the trial court whereby application filed by him for grant of default bail under Section 167 (2) Cr.P.C. read with Section 36(A)(4) has been dismissed, citing the reasons recorded in order dated 02.07.2021 which has been impugned in connected petition viz. Criminal Miscellaneous No.M-48705 of 2021 whereby an application moved by the prosecution for extension of time for filing challan was allowed on the ground that co-accused Pawan son of Shankar, was yet to be arrested and report of FSL had not been received.

6. The FIR was registered on the basis of statement of ASI Ashok Kumar to the effect that on 07.01.2021, petitioner was intercepted by police party. He was carrying a plastic bag on his motor-cycle. On search, he was found in conscious possession of 19 boxes containing 20 strips (3800 tablets) of Tramado Hydrochloride Prolonged-release Tablets-IP and Tricore-SR each. Total quantity/weight of tablets was found to be 1599.8 grams. Petitioner was arrested and FIR No.8 dated 07.01.2021 under Section 22C of Narcotic Drugs & Psychotropic Substances, 1985 (for short, ‘NDPS Act’) was registered with Police Station, Civil Lines, Sirsa.

7. Learned counsel for the petitioner has submitted that allegedly 3800 intoxicant tablets were recovered as per prosecution but final report could not be filed within statutory period of 180 days as FSL report was not received. Allowing of time for filing final report upto one year to prosecution is in direct violation of mandate of Section 36(A)(4) of the NDPS Act as well as law laid down in Sanjay Dutt vs. State through C.B.I., Bombay, (1994) 5 SCC 410 and Sanjay Kumar Kedia vs. Narcotics Control Bureau, (2009) 17 SCC 631. Learned counsel for the petitioner has further submitted that petitioner is in custody since 07.01.2021.

8. Learned counsel for the State has submitted that Investigation is complete. Final report under Section 173 Cr.P.C. was filed on 14.12.2021 against the petitioner and two other co-accused. Learned counsel further submitted that co-accused Kalu @ Daulat Ram had already been granted regular bail by this Court vide judgment dated 04.06.2021 passed in Crl. Misc. No.M-19022 of 2021 and another co-accused Pawan is also on bail. Petitioner is not involved in any other case. Lastly, learned counsel has contended that recovery in the present case is heavy commercial quantity, as such, both the petitions are liable to be dismissed.

9. I have heard learned counsel for the parties and perused the record.

10. In the present case, petitioner prayed for grant of bail under Section 167(2) Cr.P.C. read with Section 36-A(4) of NDPS Act since challan was not filed within stipulated period of 180 days. However, vide order dated 25.10.2021, petitioner was denied the concession of default bail on the primary ground that prosecution had been permitted to file final report under Section 173 Cr.P.C. within an extended period upto one year vide order dated 02.07.2021.

11. For proceeding further, relevant provisions of Section 36A of NDPS Act need to be gone into and it reads as under:-

“36.A. Offences triable by Special Courts.-

(1) xx xx

(2) xx xx

(3) xx xx

(4) In respect of persons accused of an offence punishable under section 19