IMPORTANT POINT
Where charge-sheet is not filed within 180 days as contemplated under Section 36-A(4) of NDPS Act and even within extended time, indefeasible right accrues to petitioners to seek bail under Section 167(2) of Cr.P.C.

ORDER

This is an application filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) to enlarge the petitioners on bail.

2. The petitioners are A1 to A4 in crime No.157 of 2021 of Garugubilli Police Station, Vizianagaram, registered for the offences punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS Act”).

3. The case of the prosecution is that on 21.12.2021, while the petitioners were transporting 110.825 Kgs of ganja in an auto-rickshaw, they were apprehended at Sunki Village, “Y” Junction of Parvathipuram along with the said ganja. Police seized the contraband from their possession. The petitioners were arrested and sent to judicial custody on 21.12.2021.

4. Heard Sri B. Rama Shankar Rao, learned counsel for the petitioners and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the respondent-state.

5. Learned counsel for the petitioners submits that petitioners are innocent and if the ganja is apportioned among the petitioners each one”s share comes to 19 Kgs, which is not commercial quantity. He submits that petitioners are languishing in jail since more than 180 days and Police have not filed charge sheet. Therefore, the petitioners are entitled for default bail in view of Section 36(A) of the NDPS Act read with 167 of Cr.P.C.

6. Learned Special Assistant Public Prosecutor submits that as the prosecution failed to file charge sheet within the 180 days, extension petition was filed before the Court below and time was extended by fifteen days to enable the prosecution to file charge sheet. He submits that the said time expired on 30.06.2022 and as per his instructions, charge sheet is not filed even as on today. He fairly contended that the petitioners are entitled for default bail.

7. It is appropriate to have a look at Section 36(A) of the NDPS Act, which reads thus:—

36-A. Offences triable by Special Courts.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers—

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this