Default bail cannot be granted where detention is valid.

S.Sardar Zackria Hussain,J.: This habeas corpus petition is filed by the petitioner/detenu/A-2 with the prayer as stated supra.

2. The learned counsel for the petitioner has submitted that he was arrested and remanded to the Judicial custody by the 1st respondent for the offences under Secs.21(C), 25, 28 and 29 of the NDPS Act, 1985, as amended in 2001 on 20.1.2005, along with A-1, Schachithanandan Sarkunam alias Sabesan for the alleged possession of 3.640 kgs. of heroin before the Special District and Sessions Judge for E.C.Act and NDPS Act cases, Madurai. The petitioner has filed a bail application for statutory bail on 20.7.2005 after 182 days as per Sec.162(2), Criminal Procedure Code and Sec.36-A(4) of the NDPS Act, which was dismissed on 25.7.2005 and though he was entitled for mandatory statutory bail, since no final report was filed on 20.7.2005. It is further stated that the defective final report was filed on 12.7.2005 i.e., on 173rd day, which was returned on 19.7.2005 and the rectified final report was presented on 25.7.2005 i.e., on the 187th day. As per Sec.36-A(4) of the NDPS Act read with Sec.167(A), Criminal Procedure Code, the final report has to be filed within 180 days, failing which, the detenu has an indefeasible right to be enlarged on bail, immaterial of the charges framed. It is also contended that after the dismissal of the statutory bail application on 25.7.2005, his custody is only illegal custody and therefore, the petitioner prays that he may be set at liberty.

3. The first respondent has filed a counter affidavit, narrating the facts relating to the arrest of the petitioner. It is further stated that by virtue of Sec.36-A(4) of the NDPS Act read with Sec.167, Criminal Procedure Code, a person accused of an offence involving commercial quantity of heroin can be placed in judicial custody for a total period of 180 days pending completion of investigation by the Prosecuting Agency. In the instant case, the period of 180 days expired on 18.7.2005. Even before the expiry of the said period, after completion of investigation, a complaint was laid on 12.7.2005 in the Special Court for NDPS cases, Madurai, which was numbered as C.C.No.271 of 2005 and immediately on coming to know of the return of the complaint for certain clarifications, the petitioner gave necessary clarifications and resubmitted the complaint on the very same day i.e., on 25.7.2005 and therefore, it is incorrect to say that there was no final report on the date of filing of the bail application by the petitioner on 20.7.2005.

4. It is also further contended by the learned Additional Public Prosecutor that merely because the charge sheet filed within time i.e., on 173rd day and returned for completion of certain defects and re-presented after 180th day, no inference can be drawn that the charge sheet filed is incomplete or no cognizance can be taken by the Court on the basis of such charge sheet and once the complaint or charge sheet is filed, it becomes the document of the Court and as such, it should not be returned.

5.The learned Additional Public Prosecutor has relied on the decision rendered in the case of State of West Bengal v. Anwar alias Answar alias Rahman, (2000)2 Crimes 557, wherein the Division of the Calcutta High Court has held as under:

“Mere omission to forward statement of witnesses and documents along with the police report as contemplated by Sec.173(5), Criminal Procedure Code, will not invalidate the cognizance taken by Court on the basis of the police report alone provided other requirements of law in this regard are satisfied and bail allowed to accused for offence under Sec.21 of the NDPS Act under Sec.167(2), Criminal Procedure Code, holding that charge sheet was not complete is bad in law and bail is liable to be recalled.”

6. In the other decision relied on by the Special Public Prosecutor, in the case ofA.Vinayagam and three others v. Dr.Subash Chandran and another, (2000)1 C.T.C. 225, it was held as under:

“Law doe

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