Important Point—Accused acquires indefeasible right to be released on bail after expiry of statutory period.

1. The instant bail application has been filed under Section 439 read with Section 167(2) Cr.P.C. on behalf of the petitioners, who are in custody in connection with F.I.R. No.39/2016, Police Station Bekariya, Dist. Udaipur for the offences under Section 8/15, 25 & 29 of the N.D.P.S. Act.

2. The petitioners were arrested by the S.H.O., P.S. Bekariya, District Udaipur on 4.4.2016 while transporting contraband Poppy Straw weighing 93.300 Kgs. in a white coloured Toyota vehicle bearing registration no. RJ 27 CE-2458. When charge-sheet was not forthcoming within the statutory limit of 180 days provided under Section 36(A)(iv) of the N.D.P.S.Act, the petitioners herein moved an application on 3.10.2016 in the Special Court seeking compulsive bail under Section 167(2) Cr.P.C. The said application was rejected on 3.10.2016 by the learned Special Judge observing that after presentation of the bail application, the prosecution had submitted the charge-sheet and thus the right to compulsive bail stood extinguished and the accused could not be released on bail in view of the law as laid down by the Hon’ble Supreme Court in the case of Pragyna Singh Thakur Vs. State of Rajasthan reported in (2011) 10 SCC-445. Hence, this application for bail.

3. Mr. Bhagirath Bishnoi, learned counsel representing the petitioners placed reliance on the Hon’ble Supreme Court’s decision in the case of Union of India Vs. Nirala Yadav reported in (2014) 9 SCC-457 and urged that admittedly the prosecution did not file the charge-sheet within the outer limit of 180 days from the date of arrest of the accused petitioners thus they acquired an indefeasible right of being released on bail. He contended that admittedly by the time, the bail application was moved in the Special Court on behalf of the petitioners on 3.10.2016, charge-sheet had not been filed. The charge-sheet came to be filed during the course of the day after the presentation of the bail application before the trial court and thus the factum of charge-sheet being filed posteriorly could not be used to defeat the indefeasible right of compulsive bail which stood crystallized in favour of the accused petitioners. He thus urged that the petitioners are entitled to be released on bail under Section 167(2) Cr.P.C. read with Section 36(A)(iv) of the N.D.P.S. Act.

4. Per contra learned P.P. vehemently opposed the submissions advanced by the petitioners’ counsel and contended that as the prosecution filed the charge-sheet before the application for compulsive bail moved on behalf of the petitioners was decided, the so called indefeasible right of bail was extinguished by subsequent events. However, learned P.P. did not dispute the fact that the prosecution filed the charge-sheet after presentation of bail application on behalf of the petitioners under Section 167(2) Cr.P.C. He also conceded that the statutory period of 180 days available to the prosecution u/s. 36(4)(a) of the N.D.P.S. Act for filing of challan had lapsed by at least two days by the date, the application for compulsive bail was moved.

5. Heard learned counsel for the petitioner and learned Public Prosecutor and have gone through the material available on record.

6. Learned trial court while rejecting the bail application filed on behalf of the petitioners relied upon the Supreme Court judgment rendered in the case of Pragyna Singh Thakur (supra) observing that subsequent filing of charge-sheet validated the action of the prosecution and extinguished the indefeasible right of bail accruing to the accused. The judgment rendered by Hon’ble the Supreme Court in the case of Pragyna Singh Thakur (supra) has been held to be per-incuriam and was impliedly over-ruled in the case of Union of India Vs. Nirala Yadav (supra).

7. In this background and looking to the admitted factual position on record, this Court is of the firm opinion that as the accused had been in custody for a period exceeding 180 days on the date, the application seeking compulsive