IMPORTANT POINT
The right to default bail under Section 167(2) of the Cr.P.C. is extinguished upon the filing of the charge sheet, and the period of preventive detention must be included in the calculation of custody for determining eligibility for default bail.

JUDGMENT :

1. Appellant has filed the instant appeal under Section 21 of the National Investigation Act, 2008, challenging the order dated 17.12.2019, passed by the learned Special Judge, Designated Court, under National Investigating Agency Act, (for short NIA Act), Srinagar, whereby the application of the appellant for grant of default bail has been rejected.

2. Briefly put, the grounds raised in the appeal are summarized as under:-

(i) The appellant was arrested on 15.11.2018, from Delhi in connection with FIR No. 288/2018, by invoking the provisions of Section 18 of Unlawful Activities (Prevention) Act. It is urged that the appellant was handed over to the Investigating Agency on 22.11.2018 and since then is languishing in custody.

(ii) The Detention order under the provisions of Public Safety Act, 1978, was slapped on the appellant on 16.05.2019, which was quashed by this Court in terms of order dated 01.10.2019. It is stated that application for grant of default bail was filed on 09.10.2019, which was put upon on 14.10.2019. The prosecution has filed objections to the application along with challan.

(iii) It is stated that no specific allegation is against the appellant and the allegation is vague and incapable. The court below has not appreciated the legal provisions correctly and has confused the situation unnecessarily. Once the accused appellant-accused is arrested in November, 2018, there arises no question of computing the period of 180 days as more than one year has elapsed. The period of detention under PSA has been excluded by the court below which is not permissible in law.

(iv) That the default bail is an indefeasible right and the accused has to be released forthwith as the said statutory right cannot be taken away by filing the charge sheet later on. The appellant- accused was produced before the court on 12.10.2019, by the PSA authorities and thus State cannot plead ignorance of the same.

(v) it is further stated that on 09.10.2019, when the application was presented before the court below, the Trial court instead of releasing the accused, issued notice for filing the objections and directed its listing on 14.10.2019, giving enough time to the prosecution to file the challan. The course adopted by the court below discouragous and even thereafter the application was decided on 17.12.2019.

3. The respondent filed objection, which inter-alias reveal that an information received from reliable sources with regard to bullet riddled dead body of one Imtiyaz Ahmad Mir, who was working as Sub-Inspector in Police Department is lying at village Wahibugh near Romshi Nala, and on receipt of the said information, FIR No. 288/2018 under Section 302 RPC, 7/27 Arms Act was lodged at Police Station Pulwama and during the course of investigation, CDR of mobile No. 9906403034 of deceased were sought and it came to fore that on the day the said SI was in frequent contact with one mobile No. 9682133454; further SDR of phone No. 9682133454 also got confirmed through CAF and on authentication by the concerned caller agency, it came to light that the SIM belonged to one Mst. Parveena Akhter W/o Mohammad Amin Shah R/o Tahab Pulwama who was called for questioning and it got ascertained that the said SIM card is certainly on her name but was being used by her daughter namely Saika D/o Mohammad Amin Shah. On questioning of Mst. Saika she disclosed that she is a student and is in relationship with SI. On 28.10.2018, she was with SI at Srinagar and they came back to Pulwama in the Car bearing Reg. No. JK01AD-8352. She also disclosed that Ansar appellant herein had followed them. Moreover, CDR of her phone were also sought from the concerned cellular company and it got ascertained that Mst. Saika was in frequent contact with one phone No. 7006614404 which on proper authentication was found on the name of one Ansar ul Haq (appellant-petitioner herein).

4. By tracing of BTS (Tower Location), it was found that appellant-accused was in Delhi and acco