The accused has an indefeasible right to default bail if the charge-sheet is not filed within the prescribed period, and the court has a duty to inform the accused of this right.

ANU MALHOTRA, J.

1. The petitioner Arvind Kumar Saxena seeks the grant of “‘default bail‘” in terms of Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973 in FIR No. 83/2017 investigated by the Crime Branch in which he was arrested on 03.06.2017 for alleged possession of 250 gms. of heroine i.e. diacetylmorphine submitting to the effect that the charge-sheet in the instant case was filed only on 20.09.2017 and thus the indefeasible right of grant of “default bail” accrued to him during the interregnum of 19.09.2017 and 20.09.2017 when there was no charge-sheet that had been filed by the prosecuting agency and that the prosecution had failed to file the charge-sheet within the statutory period of 60 days from the date of arrest, which expired on 04.08.2017. The petitioner submits that he had filed the application seeking release of bail on 19.09.2017 before the learned Trial Court under Section 439 of the Criminal Procedure Code, 1973 which was fixed for 26.09.2017.

2. Vide paragraph 4 of the application under Section 439 of the Criminal Procedure Code, 1973 dated 19.09.2017, the applicant submitted that he had been arrested by the police of the Crime Branch on 03.06.2017 and had been sent to judicial custody and that he was willing to join investigation as and when called by the Investigating Officer and that nothing had been recovered from his possession and, if any, the same was planted by the police and that he had not committed any offence which is punishable under the law and that he had clean antecedents and he was not a previous convict and that he has deep roots in the society and that there was no likelihood of his fleeing away from the Court of justice and that he is willing to join investigation as and when directed by the Court and that he undertakes to furnish the sound and reliable surety for the satisfaction of the Court and he is ready to abide by all the terms and conditions if imposed upon him by the Court and sought that he be released on bail.

3. Vide an application dated 21.09.2017, the applicant sought the grant of bail submitting that he had been detained beyond the statutory period of 60 days in terms of Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973 and sought that he be released on bail and undertook to furnish the required bail bond submitting to the effect that the prosecution had failed to file any charge-sheet against him within the statutory period prescribed.

4. Vide order dated 22.09.2017, the learned Trial Court of the ASJ-02, (East), Special Judge (NDPS), Karkardooma Courts, Delhi declined the application dated 21.09.2017 as being not maintainable observing to the effect that the accused had not exercised his rights for the grant of statutory bail prior to the filing of the charge-sheet and that the said application had been filed after the filing of the charge-sheet and after cognizance had been taken by the Court, in as much as the charge-sheet has been filed on 22.09.2017 and was thus not maintainable and was dismissed.

5. The petitioner herein contends that the offence for which he was arrested was allegedly for possession of 250 gms. of heroine which in terms of the Entry 56 Column 6 to the table under Sub-Clause 2(vii)(a) of the NDPS Act, 1985 was lesser than the commercial quantity in terms of the Notification No. SO.1055(E) dated 19.10.2001 issued by the Central Government, does not make him culpable even allegedly qua the possession of any ‘commercial quantity’ of any narcotic drug and that the alleged recovery of 250 gms. of heroine fell into the ‘intermediary quantity’ for the purpose of the sentence that could be imposed on him in terms of Section 21(b) of the NDPS Act, 1985, which provides as follows : -

“21. Punishment for contravention in relation to manufactured drugs and preparations - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses,