IMPORTANT POINT
Grant of bail on the ground of undue delay in trial is not fettered by Section 37 of NDPS Act.

JUDGMENT

The Petitioner has prayed to release him on bail under Section 439 Cr.P.C. He was arrested and remanded to custody on 4th September 2021 in connection with S.T.F. P.S. Case No.31 dated 3rd September 2021 for alleged commission of offences under Sections 21(c)/29 of the N.D.P.S. Act for transporting and possessing 1 kg 34 grams of brown sugar (heroin). Since then, the Petitioner is inside custody in connection with the aforesaid Police Case corresponding to T.R. Case No.126 of 2021 in the court of learned 1st Additional Sessions Judge-cum-Special Judge, Khordha.

2. The prayer for his release on default bail in terms of the provisions contained in Section 167 (2) of the Cr.P.C. read with Section 36-A(4) of the N.D.P.S. Act was earlier rejected by this Court in CRLMC No.625 of 2022. This Court in its order dated 25.04.2022 have held as follows:—

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2. Law is no more res integra on this issue. Recently in the case of M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, the Hon’ble Supreme Court has reiterated the law that the date on which the accused was remanded to judicial custody has to be excluded from calculation of statutory period of 180 days. It was observed at paragraph 8 of the said decision that:—

“This Court in a catena of judgments including Ravi Prakash Singh vs. State of Bihar, (2015) 8 SCC 340, has ruled that while computing the period under Section 167(2), the day on which accused was remanded to judicial custody has to be excluded and the day on which challan/charge-sheet is filed in the court to be included.”

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7. As stated above, the day of initial remand is excluded from the statutory period as held in several case laws. By excluding 4th September, 2021 from counting, 180 days completes on 3rd March, 2022 when the prayer for extension was allowed by the learned Special Judge, It goes without saying that unless statutory period of 180 days is completed, no right of default bail accrues in favour of the accused. As such in the given facts of the case, no merit is seen in the prayer of the Petitioner to release him on default bail.”

3. Mr. D. Panda, learned counsel for the Petitioner submitted that recently a Three Judge Bench of Hon’ble Supreme Court taking note of the case of M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 and several other case laws have held in Enforcement Directorate, Government of India vs. Kapil Wadhawan and another, 2023 SCC OnLine SC 972 while answering the reference that whether the period of remand under the first proviso to Section 167 (2) of the Code of Criminal Procedure, 1973 is inclusive of the day on which the Magistrate orders remand, have clarified and declared that the stipulated 60/90 day remand period under Section 167 Cr.P.C. ought to be computed from the day when the Magistrate authorizes remand. The relevant observations are reproduced below.

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Simply put, the Court needs to answer whether the period of remand under the first provision to Sec.167 (2) of the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) is inclusive of the day on which the Magistrate orders remand.

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7. The prosecution relies, on the line of reasoning in State of M.P. Vs. Rustam & Ors., 1995 (Supp) 3 SCC 221, which was later followed in Ravi Prakash Singh Vs. State of Bihar, (2015) 8 SCC 340 and M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence, (2021) 2 SCC 485 where it was held that the date of remand is to be excluded for computing the stipulated 60/90 days period for the right of default bail to arise.

8. On the other hand, the Accused rely, inter alia, on Chaganti Satyanarayan Vs. State of Andhra Pradesh, (1986) 3 SCC 141, CBI Vs. Anupam J Kulkarni, (1992) 3 SCC 141, State Vs. Mohd. Ashraf Bhat, (1996) 1 SCC 432 and State of Maharashtra Vs. Bharati Chandmal Varma, (2002) 2 SCC 121 to contend that the first date of remand m