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2016 Supreme(Cal) 240
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SUDIP AHLUWALIA, J.
Emadul Gazi @ Ansar - Petitioner
Vs.
The State of West Bengal - Respondent
C.R.R. No. 3080 of 2015
Decided On : 02-02-2016
For the Petitioner: Mr. Suman Chakraborty, Mr. Anupam Gupta.
For the State : Mr. Ayan Basu.
An accused is entitled to avail of his indefeasible right to bail on expiry of the statutory period, and the court cannot cancel the bail once it has been granted and the bail bond has been accepted by the competent authority.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 167(2) - INDEFEASIBLE RIGHT TO BAIL - COURT'S POWER TO CANCEL BAIL - INTERPRETATION OF SECTION 167(2) - KEY LEGAL PRINCIPLES ESTABLISHED.
Fact of the Case:
The petitioner was arrested and produced before the Ld. Chief Judicial Magistrate on 27th June 2015 under Section 20(b)(i) of the N.D.P.S. Act, 1985. He remained in detention beyond the statutory period of sixty days prescribed in terms of the proviso (ii) of Section 167(2) of the Code of Criminal Procedure. The designated Court granted him bail on 29th August 2015, but before he could furnish the bail bond, the Charge Sheet was submitted against him on 30th August 2015. The Chief Judicial Magistrate accepted the bail bond on 31st August 2015, the same date on which the cognizance was taken by the designated Court. However, the designated Court suo-motto cancelled the bail granted to him on the ground that the accused failed to furnish the bail bond prior to the submission of the Charge Sheet.
Finding of the Court:
The Court held that the petitioner had already availed of his indefeasible right to bail after expiry of the statutory detention period, as he had been granted bail by the designated Court and his bail bond had been accepted by the competent authority. The Court further held that the designated Court acted with material irregularity in cancelling the petitioner's bail after he had furnished the bail Bonds which had already been accepted by the Chief Judicial Magistrate.
Issues: 1. Whether the petitioner had availed of his indefeasible right to bail after expiry of the statutory detention period? 2. Whether the designated Court acted with material irregularity in cancelling the petitioner's bail after he had furnished the bail Bonds which had already been accepted by the Chief Judicial Magistrate?
Ratio Decidendi: 1. The Court relied on the Supreme Court's decision in Union of India v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav (supra) relying upon the earlier majority decision in Uday Mohanlal Acharya v. State of Maharashtra (supra) to hold that an accused is entitled to avail of his indefeasible right to bail on expiry of the statutory period. 2. The Court held that the designated Court's cancellation of the petitioner's bail was not in accordance with the law, as the petitioner had already availed of his indefeasible right to bail.
Final Decision: The Court set aside the impugned order and directed the Ld. Court below to pass appropriate orders for release of the petitioner on bail on the same terms and conditions which were specified in the previous order dated 29th August, 2015.
SUDIP AHLUWALIA, J.
1. The petitioner in this case was arrested and produced before the Ld. Chief Judicial Magistrate, Barasat, 24 Parganas (North) on 27th June, 2015 in connection with Baguiati Police Station Case No. 552 of 2015 of that date under Section 20(b)(i) of the N.D.P.S. Act, 1985. He remained in detention in excess of the statutory period of sixty days prescribed in terms of the proviso (ii) of Section 167(2) of the Code of Criminal Procedure.
2. The designated Court on 29th August, 2015 i.e. three days after the petitioner had remained in detention beyond the statutory period, allowed his application for bail. However, before he could furnish the bail bond on the very next date (30th August, 2015) which incidentally was a Sunday, the Charge Sheet No. 710 of that date was submitted against him in the Court of the Learned Chief Judicial Magistrate, 24 Parganas (North).
3. The Chief Judicial Magistrate forwarded the same to the designated Court, which received it on the following day i.e., 31st August, 2015, and took cognizance under Section 21(b) of the N.D.P.S. Act.
4. However, separately on that very date, the bail bond was furnished on behalf of the petitioner before the Chief Judicial Magistrate, who was the competent/authorised Officer to accept the same in terms of the original bail order. Ld. Chief Judicial Magistrate accepted that bail bond on 31st August, 2015, i.e., the date on which the cognizance was taken by the designated Court. Thereafter, the said Court on the 1st of September, 2015 suo-motto passed the impugned Order cancelling the bail granted by it earlier with the following observations-
“In terms of order dated 29.08.2015, the bail bond was furnished by the accused.
It appears from the said order that due to expiry of statutory period of time, the accused was granted bail on 29.08.2015 but they could not furnish bail bond and the bail bond was accepted by the Ld. C.J.M. on 31.08.2015 and the relevant order along with the bond was received by this Court on 01.09.2015.
It also appears that in the meantime, C/S has already been submitted and the accused person failed to furnish the bail bond prior to the submission of C/S. In terms of the decision of the Hon'ble Supreme Court, I am not in a position to release the accused on bail. The bail bond as was accepted by the ld. CJM be returned to his office with direction to discharge the sureties from liabilities and to adjust the amount in the relevant register. He is also directed to release the KVP filed by Akram Ali Khan to the holder of the said KVP immediately…”
5. The contention of the petitioner in this regard is that once the statutory bail had been granted to him by the designated Court, it had no justification for recalling the order since his “indefeasible right” to apply for and avail of the benefit of bail in terms of Section 167(2) had already been “availed of”. To support this contention, he has relied upon the decision of the Supreme Court reported in (2001) 5 SCC 453 (Uday Mohanlal Acharya v. State of Maharashtra), in which the Apex Court had summarized its conclusions as to how balance can be struck between the so-called indefeasible right of the accused on failure on the part of the State to file a challan within the specified period, and the society at large in lawfully preventing an accused from being released on bail on account of inaction on the part of the prosecution agency. In this regard, reliance has been placed on behalf of the petitioner on the following observations of the Supreme Court-
“13….. (6) The expression “if not already availed of” used by this Court in Sanjay Dutt case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held t
