Point of Law: Once the accused files an application for bail under the proviso to section 167(2) he is deemed to have availed of or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation.

JUDGMENT :

SUVRA GHOSH, J.

1. The petitioner is in custody since 20.02.2020 and prays for statutory bail.

2. The petitioner submits that charge sheet was not submitted within the stipulated period of time and only on the date on which the petitioner’s prayer for statutory bail was taken up for consideration by the learned trial court, the prosecution submitted charge sheet before the learned court. The learned court took cognizance of the charge sheet and rejected the petitioner’s prayer by the same order. Learned Counsel for the petitioner has placed reliance upon the observation the Hon’ble Supreme Court in M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 and S. Kasi vs. State through the Inspector of Police Samaynallur Police Station, Madurai, 2020 SCC Online SC 529 in support of his contention.

3. The State opposes the prayer for bail.

4. We have considered the material on record.

5. It is not in dispute that contraband article above commercial quantity was recovered from the possession of the petitioner and in the normal course, he is not entitled to bail in view of the statutory restriction under section 37 of the NDPS Act.

6. However, certain other facts have come into play in the present case prompting the petitioner to pray for statutory bail. The petitioner was arrested on 20.02.2020 and is in custody since then. Prior to expiry of the statutory period of 180 days for submission of charge sheet, such period was extended by 30 days with effect from 17.08.2020 by an order dated 18.08.2020 on prayer of the learned Special Public Prosecutor.

7. No charge sheet being filed before the learned trial court even after expiry of 180 days as stipulated under Section 36-A(4) of the NDPS Act or the extended time period, the petitioner prayed for statutory bail before the learned court on 22.02.2021. After the said application was heard by the learned trial court, the prosecution submitted charge sheet before the learned court and cognizance of the same was taken by the learned court on the same day, i.e. on 22.02.2021.

8. As mandated by the proviso to Section 36-A(4) of the NDPS Act, the Public Prosecutor ought to have prayed for extension of time to complete the investigation stating specific reasons for detention of the accused/petitioner beyond the period of 180 days. No such petition appears to have been filed by the prosecution before the learned trial court prior to filing of the bail petition by the petitioner.

9. As observed by the Hon’ble Supreme Court in M. Ravindran (supra) “Once the accused files an application for bail under the proviso to section 167(2) he is deemed to have availed of or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation.” In other words, an accused should be released on statutory bail on his prayer upon expiry of 180 days or the extended period, as the case may be, notwithstanding filing of the charge sheet by the prosecution subsequent to filing of the bail petition.

10. Things would of course have been different had the prosecution filed an application for further extension of time to complete investigation prior to expiry of the extended period of 30 days or even prior to the petitioner applying for statutory bail. In that case, the learned trial court would have had to decide the application of the prosecution first. If such decision was in favour of the prosecution, i.e. if the time was extended, the petitioner’s application for statutory bail would have failed. On the other hand, if the application of the prosecution was rejected, the petitioner’s application for statutory bail would have been allowed as a matter of course.

11. In the present case, charge sheet was submitted before the learned trial court only after the bail petition was taken up for consideration by the learned court. The charge sheet was filed after expiry of the extension of time granted by the learned court and no further