IMPORTANT POINT
Oral application is sufficient to release accused on statutory bail.

ORDER

Is an oral application sufficient to release an accused on statutory bail? Is the point posed for consideration in the bail application?

2. The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the third accused in Crime No.314/2023 registered by the Peechi Police Station, Thrissur, against four persons for allegedly committing the offence punishable under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’ for short). The petitioner was arrested on 26.05.2023.

3. The essence of the prosecution case is that, on 26.05.2023 around 12.30 a.m., acting on a secret information, the detecting officer intercepted the vehicle bearing Reg. No.KL-43/A-3874 and the accused were found travelling in the vehicle. In the search that was conducted, 49.300 kilograms of Ganja was seized from the vehicle. The accused were arrested on the spot for being in possession of and transporting the contraband article in contravention of the provisions of the Act. Thus, the accused have committed the above offence.

4. Heard Sri. Vivek Venugopal, learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.

5. The learned counsel for the petitioner zealously argued that, notwithstanding the several grounds that have been raised in the bail application, the petitioner is entitled to be released on statutory bail since the final report has not been laid within the statutory time period mandated under Section 36 A of the Act. He submitted that since the petitioner was arrested on 26.05.2023, his indefeasible right for compulsive bail had accrued on 22.11.2023, i.e., on the 181st day of his remand. Hence, the petitioner is entitled to be released on statutory bail. He placed reliance on the Constitutional Bench decision of the Hon’ble Supreme Court in Sanjay Dutt v. State through C.B.I., Bombay [(1994) 5 SCC 410] and the decision in Rakesh Kumar Paul v. State of Assam [(2017) 15 SCC 67] to reinforce his contentions.

6. The learned Public Prosecutor firmly opposed the application asserting that the application was filed before the expiry of the statutory period and the petitioner has not filed a separate application under Section 36A of the Act read with Section 167 of the Code to be released on statutory bail as held by the Hon’ble Supreme Court in Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence [2020(6) KLT 127]. As the final report was laid on 24.11.2023 and the petitioner failing to file a separate application at the relevant time, his statutory right was extinguished. She also highlighted that, since the contraband is of commercial quantity, the petitioner is not entitled to be released on statutory bail in view of the rigour under Section 37 of the Act. She urged the application to be dismissed. Nevertheless, she conceded to the facts that the statutory period for filing the final report had expired on 22.11.2023, that the final report was filed only on 24.11.2023 and the Public Prosecutor had not filed any report as prescribed under the proviso to Sub-Section (4) of Section 36 A of the Act, to extend the time period to complete the investigation.

7. The petitioner filed the instant bail application on 01.11.2023. As discernible from the proceedings, the application came up for admission on 02.11.2023 and was adjourned to 10.11.2023 for the instructions of the Public Prosecutor. On 10.11.2023, this Court adjourned the application for the report of the Investigating Officer. Again, on 10.11.2023, the application was adjourned to 22.11.2023, then to 29.11.2023 and to the subsequent dates for the report of the Investigating Officer.

8. The learned counsel for the petitioner emphatically submitted that when the application came up for consideration on 22.11.2023, he specifically drew the attention of this Court to the fact that the petitioner was entitled to be released on statutory bail due to the non-filing of the final