The right to default bail under Section 167(2) Cr.P.C. is an indefeasible right that cannot be extinguished by the mere filing of an incomplete chargesheet.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’) is at the behest of the petitioner assailing correctness, legality and judicial propriety of the impugned order as at Annexure-1 dated 18^th June, 2022 passed in connection with C.T. Case No.23 of 2021 by the learned Additional Sessions Judge-cum-Special Judge at Balliguda corresponding to Tumudibandha P.S. Case No.24 of 2021, whereby, an application seeking default bail in terms of Section 167(2) Cr.P.C. read with Section 36A(4) of the N.D.P.S. Act was disposed of and declined.

2. The facts pleaded on record revealed that on 9^th April, 2021, on a written report received, Tumudibandha P.S. Case No.24 of 2021 was registered under Section 20 (b)(ii)(C) of the NDPS Act, whereafter, the investigation was commenced. It is pleaded that on 9^th April, 2021, on the requisition of the I.O., the learned court below, without receiving the case diary, illegally forwarded the petitioner for having committed the alleged offence, which is in clear violation of Section 167 (1) Cr.P.C., following which, on 9^th April, 2021, the application for bail was filed but it was rejected on 19^th April, 2021 primarily considering the nature of allegations and recovery of commercial quantity of Ganja, whereafter, he preferred BLAPL No.5131 of 2021 before this court but it was withdrawn on 22^nd July, 2021 so as to renew the prayer for bail on completion of investigation and submission of chargesheet. The further pleading is that the I.O failed to file the chargesheet within the stipulated period of 180 days and on 7^th October, 2021 i.e. 182^nd day without the chemical examination report, the preliminary chargesheet was filed against the petitioner before learned court below under (b)(ii)(C) of NDPS Act and by not considering the fact that the chargesheet is incomplete, in absence of such report, unlawfully took cognizance of the offence and for that matter, it failed to inform the petitioner his indefeasible right to go on bail under Section 167(2) Cr.P.C. and finally, on 2^nd July, 2022, the application for default bail was moved but it was declined vide Annexure-1. Since, the chargesheet was not submitted within the stipulated period of 180 days and thereafter, it was filed without a chemical examination report, the petitioner was, hence, entitled to default bail in terms of Section 167(2) Cr.P.C.

3. Heard Mr. Sahu, learned counsel for the petitioner and Ms. Dash, learned ASC for the State.

4. Mr. Sahu, learned counsel for the petitioner cited the following decisions, such as, Amar Nath & others Vrs. State of Haryana & others AIR 1977 SC 2185 , Honnaiah T.H. Vrs. State of Karnataka 2022 Live Law (SC) 672; Ritu Chhabaria Vrs. The Union of India & others 2023 SCC Online (SC) 502; Rohtash @ Raju Vrs. State of Haryana in CRR No.933 of 2022 (O&M) dated 1^st June, 2022 and an order dated 5^th September, 2023 of this Court in Thallury Chakrabarty Vrs. State of Odisha (CRLMC No.2799 of 2023) and furthermore, referring to the citation in Lambodar Bag Vrs. State of Odisha (2018) 71 OCR 31 contends that the petitioner is eligible and entitled to go on bail as per Section 167(2) Cr.P.C. with the submission that the chargesheet was not filed within the stipulated period of 180 days and with the preliminary chargesheet received by the learned court below, it was not accompanied with the chemical examination report but when the default bail was applied on 2^nd June, 2022, later to the taking cognizance of the offence under Section 20 (b)(ii)(C) of the NDPS Act, it