Point of Law : Psychotropic drugs - Indefeasible right of accused - Accused to get default bail is accrued and it is indefeasible right of the accused which cannot be defeated by prosecution after completion period as per provisions of Section 167(2) Cr.P.C.

ORDER :

1. The petitioners have filed present Cr. M.P. for quashing of the order dated 12.04.2021 passed by learned Additional Sessions Judge and Special Judge (NDPS), Balodabazar- Bhatapara in connection with Crime No. 110/2021 whereby an application filed by the petitioners under Section 167(2) of Cr.P.C. for grant of default bail was rejected on the count that charge-sheet has not been filed within 60 days.

2. The petitioners were charged for offence punishable under Section 22(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’). It is the case of prosecution is that from possession of petitioner No. 1, 145 strips of Spasmo Proxyvon Plus total 1160 capsules and from the possession of petitioner No. 2, 90 strips total 720 capsules of Spasmo Proxyvon Plus prohibited psychotropic drugs were seized. The seized quantity of the psychotropic drugs was higher than minimum quantity but less than commercial quantity.

3. The facts projected by the petitioners, in brief, are that the petitioners are arrested on 09.02.2021 in connection with Crime No. 110/2021 by police Station City Kotwali, Balodabazar for the offence punishable under Section 22(B) of the NDPS Act. On 10.02.2021, they were produced before court for remand and since then they are in judicial custody. It was essential for the prosecution to file charge-sheet within 60 days i.e. on or before 10th April, 2021 but charge- sheet has been filed on 12.04.2021 i.e. after 60 days, therefore, petitioners have made an application under Sections 167(2) Cr.P.C. on 12.04.2021 seeking bail on the ground of non-filing of charge-sheet within 60 days from the date of police custody of accused.

4. The petitioners on above factual matrix filed their bail application under Section 167(2) Cr.P.C on 12.04.2021 before the Special Judge (NDPS), Balodabazar-Bhatapara. The prosecution objected the same. Learned Trial Court vide impugned order dated 12.04.2021 rejected the application holding that 10th April 2021 and 11th April, 2021 were Government Holidays though 60 days statutory period has been completed on 11.04.2021, on the first working day challan has been filed, as such, there is no substance in the submission made by the petitioners, accordingly the bail application was rejected. This order is being challenged by the petitioners before this Court.

5. I have heard learned counsel for the applicants as well as learned counsel for the State and perused the case diary.

6. Learned counsel for State opposing the bail application would submit that for submission of charge-sheet time period is 180 days as per NDPS Act 1985 and he would refer to Section 36A of NDPS Act, 1985. The charge-sheet has been filed within time period, therefore, present application is liable to be dismissed by this Court.

7. From perusal of the material and pleading of the party following points emerge for determination by this Court:

(i) Whether grant of bail as provided under Section 167(2) of the Cr.P.C. indefeasible right of the accused and prosecution can defeat the same by filing final report after expiry of maximum period prescribed under the provisions?

(ii) Whether the holidays will be accountable in computing the period of 60 days for granting benefit of bail and from which date the maximum period for filing of charge sheet is countable?

Findings on Point No. 1

8. Before adverting to submissions of the learned counsel for the petitioners as well as submission of learned counsel for State, it is apt to examine provisions of Section 167(2) of Cr.P.C. and section 36A of NDPS Act 1985 which is extracted below:-

“Section 167(2) in the Code of Criminal Procedure, 1973:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such cu