Back
2021 Supreme(Ori) 376
IN THE HIGH COURT OF ORISSA, CUTTACK
P. Patnaik, J.
Sadhu Muduli - Appellant
Versus
State Of Orissa - Respondent
CRLMC No. 317 of 2021
Decided On : 26-03-2021
Important Points
Subject
Criminal Law - Bail and Pre-Trial Release
Act Referred
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.36(a)(4), S.20(b)(ii)(c)
Headnote
N.D.P.S. Act - Default Bail - Section 20(b)(ii)(C) of the N.D.P.S. Act, Section 36-A(4) of the N.D.P.S. Act, Section 167(2) of the Cr.P.C. - The court discussed the principles of law enumerated in Section 167(2) of the Cr.P.C. and Section 36-A(4) of the N.D.P.S. Act, emphasizing the indefeasible right of the accused for release on default bail and the obligation of the court to inform the accused of his right for release on bail before granting extension of time to the prosecution.
Fact of the Case:
The petitioner, accused in a case under Section 20(b)(ii)(C) of the N.D.P.S. Act, sought default bail, contending that the remand in custody was against the principles of law enumerated in Section 167(2) of the Cr.P.C.
Finding of the Court:
The court found that the accused's right for release on default bail had been violated, as the accused was not given any opportunity of hearing to lead his legitimate objections nor informed of his right of default bail before granting extension of time to the prosecution.
Issues: Violation of accused's right for release on default bail, illegality in granting extension for completing investigation, and failure to inform the accused of his right for release on bail.
Ratio Decidendi: The court held that the accused's entitlement for bail on account of non-submission of prosecution report would not be affected even if the accused had not applied for bail during the default period, and that the accused cannot be stated to have voluntarily given up their indefeasible right for default bail.
Final Decision: The court set aside the order granting extension to the prosecution for completion of investigation and directed the release of the petitioner on bail.
JUDGMENT
1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).
2. Heard Mr. Manoranjan Padhy, learned counsel for the petitioner and Mr. Dhananjay Mund, learned Additional Government Advocate.
3. The petitioner, who is accused in T.R. Case No.13 of 2020 arising out of Nandapur P.S. Case No.17 of 2020 for commission of offence under Section 20(b)(ii)(C) of the N.D.P.S. Act, have prayed for releasing them on default bail in terms of Section 36-A(4) of the N.D.P.S. Act read with Section 167(2) of the Cr.P.C.
4. The case of the petitioner is that, on the allegation of transporting and possessing 44 Kgs. 840 grams of contraband ganja, he was arrested and taken to custody on 12.02.2020 in connection with Nandapur P.S. Case No.17 of 2020 for commission of offences under Section 20(b)(ii)(C) of the N.D.P.S. Act. Pending investigation, he was remanded to custody on 07.08.2020 by order of the learned Additional Sessions Judge-cum-Special Judge, Koraput in T.R. Case No.13 of 2020 and since then the petitioner is inside custody. The investigation continued and 180 days was to complete on 11.08.2020. On 07.08.2020, a petition was filed by prosecution praying for extension of a further period of 60 days for completion of investigation and submission of final report. On the same day, learned Additional Sessions Judge-cum-Special Judge granted extension of 60 days to the prosecution for completion of investigation without giving any opportunity of hearing to the accused-petitioner. On 06.10.2020, charge-sheet was filed by the prosecution against the petitioner and two other accused persons for the offences stated above and the cognizance has been taken for the offences on the same day by the learned Additional Sessions Judge-cum-Special Judge.
5. The petitioner contend before this Court that remanding him in custody on 11.08.2020 is against the principles of law enumerated in Section 167(2) of the Cr.P.C. The learned counsel for the petitioner by relying on a decision of this Court reported in (2018)71 OCR-31, Lambodar Bag Vrs. State of Orissa, contends that before granting extension of time for completion of investigation beyond 180 days without granting any opportunity of hearing to the petitioner and even without intimating him of his rights for release on bail upon completion of 180 days is gross violation of law and thus, the order dated 07.08.2020 of the learned Additional Sessions Judge-cum-Special Judge and subsequent remand of the petitioner into custody is illegal and liable to be set aside. It is thus prayed that the petitioner should be released on default bail as a matter of right guaranteed under the provisions contained in Section 167 (2) of the Cr.P.C. read with Section 36-A(4) of the N.D.P.S. Act.
6. Perusal of photocopy of the lower court record reveals that the petitioner has not prayed for his default bail before the learned Additional Sessions Judge-cum-Special Judge as contended by them before this Court.
7. It is the settled law that right guaranteed under Section 167(2) to the accused is indefeasible. This Court, in the case of Labmbodar Bag (supra) after taking into consideration the principles decided in the case of Hitendra Vishnu Thakur Vrs. State of Maharashtra, reported in A.I.R. 1994 SC 2623 and various other decisions, have answered on five points relating to release of an accused in terms of Section 36-A (4) of the N.D.P.S. Act read with Section 167 (2) of the Cr.P.C. The answer is in affirmative in favour of the accused for his enlargement on bail for non-completion of investigation within the prescribed period of 180 days on different contingencies relating to extension of such period. It is observed inter alia by this Court at para-8 as follows:
'In the case in hand, when the petition was filed by the learned Addl. Special Public Prosecutor on 22.07.2017 for extending the period of investigation, no notice was issued to the petitioners on such petition to have their say in the matter. Even
