Point of law :Rejection of Bail - Only in the case when a charge-sheet is not filed and investigation is kept pending, the benefit of the proviso appended to sub-section (2) of S.167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases- the only contingency under which the accused gets right to be released on bail under that provision is the non-filing of the final report by the investigating officer within the period of sixty/ninety/ one hundred and eighty days, as the case may be

ORDER :

1. Applications for regular bail under Section 439 Cr.P.C.

2. Applicants in B.A. Nos. 2776/21, 2842/21 and 3104/21 are accused Nos. 2, 1 and 3, respectively, in Crime No. 08/2020 of Excise Circle Office, Aluva for offences punishable under Sections 20(b)(ii)(C), 25 and 29 of the Narcotic Drugs and Psychotropic substances Act. The final report has been filed and taken on file as SC 145/2021 on the file of the VII Additional Sessions Court, Ernakulam.

3. The prosecution case, in brief, is this:

On 02-09-2020 at about 08:10 PM, the Excise Inspector, Aluva and his party intercepted a lorry bearing Registration No. KL-05-AB/0352. The applicants were inside the lorry. On search, 2 Kgs of ganja each was recovered from the person of A1 and A2, and a further search of the lorry resulted in the seizure of 28 Kgs of ganja. A total of 32 Kgs of ganja was being transported by the accused who was party to a conspiracy to transport and store ganja of commercial quantity, intended for sale. The applicants were arrested and remanded to judicial custody. The application for statutory and regular bail filed by the applicants was dismissed by the jurisdictional Court, and hence they have approached this Court for indulgence. It is submitted by A1 and A2 that the accused have been in custody since 02-09-2020, and though the final report was filed on 20-03-2021, within the statutory period of 180 days stipulated under Section 167(2) read with Section 36A(4) of the NDPS Act, the cognizance was not taken till the expiry of 180 days on 01-03-2021. Hence the applicants are entitled to bail.

4. Heard Advocates Smt. Anitha Mathai Muthirenthy appearing for A1 and A2, Sri K Anand appearing for A3, and the Public Prosecutor Smt. V. Sreeja, appearing for the State. Records perused. Learned counsel Smt Anitha has strenuously argued that the accused are entitled to be released on bail as their custody consequent to the filing of the final report is illegal, and the remand was not under the provisions of Section 309 Cr.P.C. The learned counsel submits that, consequent to the filing of the final report, the remand could not have been extended under section 167 Cr.P.C. She points out to section 309 Cr.P.C. to argue that consequent to the filing of the final report, the remand to judicial custody can only be under section 309. But for that, the court will have to take cognizance. In the instant case, the charge-sheet was filed on 20-02-2021. 180 days of custody got over by 01-03-2021. Hence the final report was filed before the expiry of the time contemplated under section 167 Cr.P.C. The applicants filed an application for statutory bail under Section 167 Cr.P.C. read with Section 36A(4) of the NDPS Act as Crl. M.C. No. 590/21, on 16-03-2021. The said application was dismissed by the the jurisdictional court on 19-03-2021, vide Annexure A1 Order. The learned counsel submits that the Court had not taken cognizance and assigned the case with the number SC 145/2021 only on 29-03-2021. The learned counsel submits that the detention of the accused from 01-03-2021 to 29-03-2021 is illegal. Reliance is placed on the decision of the Apex Court in Pradeep Ram vs. State of Jharkhand and Another, 2019 KHC 6622, to submit that on taking cognizance, the remand of the accused can only be made under section 309 Cr.P.C. and not under Section 167 Cr.P.C. The remand of the accused subsequent to the statutory period of 180 days is a clear violation of Article 21 of the Constitution, states the learned counsel. To further bolster her argument, the learned counsel seeks support in a decision of the Karnataka High Court in Devidrappa and Another vs. State of Karnataka, 2004 KHC 2358, wherein it is held that the detention of the accused subsequent to the filing of the final report under section 167 Cr.P.C. is illegal detention and so, the accused is entitled to bail. In that case, the final report was filed on 10-06-2003. The statutory period of 90 days under S. 167 Cr.P.C. came to