The main legal point established is the mandatory requirement of notice to the accused for any application for extension of time under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the fundamental right of default bail for the accused.

ORDER :

1. Petitioner seeks default bail in connection with Sankrial Police Station Case No.862 of 2020 dated September 21,2020 under Section 20(b)(ii)(c) of the Narcotic Drug and Psychotropic substances Act, 1985.

2. Learned Advocate appearing for the petitioner submits that the petitioner is entitled to default bail in terms of Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He submits that the petitioner was arrested on September 21, 2020. 180 days from September 21, 2020 expired on March 20, 2021. A put up petition was filed on March 19, 2021 at the behest of the State whereupon, the learned Judge extended the time in terms of Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 without notice to the petitioner. He refers to (2009) 17 SCC 631 (Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narcotics Control Bureau & Anr.) and submits that the petitioner as the accused was entitled to notice of the application for extension of time made under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985. No notice of such application being given, the order extending time of Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is a nullity. He refers to (2019) 5 SCC 178 (State of Maharashtra vs. Surendra Pundlik Gadling & Ors.) and submits that the application for extension was filed by the Investigating Officer and not by the Public Prosecutor and, therefore, the application itself was bad in law. The learned Judge erred in law in entertaining such an application and passing an order of extension thereon.

3. Relying upon (2016) 4 C CR. LR (Cat 535 (Moraful Saikh @ Morful Saikh) he submits that in the facts of the present case since there is a default in filing an application for extension within 180 days and since the order extending time passed on March 19, 2021 is a nullity, there was no charge-sheet within the prescribed time period of 180 days. Relying upon 2021 (5) SCALE 346 (Fakhrey Alam vs. The State of Uttar Pradesh), learned Advocate appearing for the petitioner submits that default bail is a fundamental right of the accused.

4. In the facts of the present case, learned advocate for the petitioner submits that there was an application for bail which was taken up for consideration by the jurisdictional Court on March 22, 2021 when the jurisdictional Court did not grant bail to the petitioner on the ground that time to file the charge-sheet stood extended on March 19,2021. He submits that a fresh application for bail was filed on April 17, 2021whereupon the jurisdictional Court not appreciating that there was no charge-sheet filed within time and, therefore, the petitioner was entitled to default bail, refused to grant bail to the petitioner. He draws the attention of the Court to the fact that the charge sheet was filed on April 19, 2021. Such charge-sheet filed on April 19, 2021 cannot treated to be one filed within the time stipulated under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 since the order of extension dated March 19, 2021 was a nullity. In such circumstances, he prays for default bail for the petitioner.

5. Learned Advocate appearing for the State submits that the petitioner is not entitled to default bail in terms of Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He submits that the petitioner never approached the jurisdictional Court seeking bail on the ground of default in filing the charge-sheet within time. The petitioner not having done so, should not be allowed to argue such point presently. He submits that the time to file the charge-sheet initially expired on March 20, 2021 taking into consideration the date of arrest of the petitioner on September 21, 2020. There was an application for extension of time filed on March 19, 2021which was within the period of initial 180 days and the same was allowed by the jurisdictional Court on March 19, 2021