An accused is entitled to be released on bail if the prosecution fails to file the challan within the stipulated period and does not file the requisite application for extension of time before the expiry of the stipulated period.

1. The petitioner prays for bail pending trial in F.I.R. No. 59 dated 01.04.2014, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), registered at police station Talwandi Sabo, District Bathinda claiming benefit under Section167(2) Cr.P.C. as the challan/report under Section 173 Cr.P.C. was not filed within the stipulated period of 180 days. Petitioner was arrested on 01.04.2014 in the abovementioned case. Period of 180 days for the presentation of challan/report under Section 173 Cr.P.C. expired on 27.09.2014. Petitioner moved an application under Section 167(2) Cr.P.C. before the learned trial court on 29.09.2014 for being released on bail, the challan having not been presented within the stipulated period. An application for extension of time for presentation of the challan was also moved by the prosecution on 29.09.2014 itself. Both the applications were adjourned by the trial court. On 18.10.2014, extension of time for presentation of the challan was granted to the prosecution. Petitioner's application for bail was dismissed as having become in-fructuous on 18.10.2014 itself on account of the extension of time being granted to the prosecution.

2. Learned counsel for the petitioner contends that in view of an indefeasible right having accrued to the petitioner on non-presentation of the challan/report under Section 173 Cr.P.C. within the stipulated period of 180 days, his application for bail could not have been dismissed in this manner.

3. Learned counsel for the State, on instructions from H.C. Iqbal Singh, submits that the challan/report under Section 173 Cr.P.C. has been presented on 18.10.2014 before the trial court. Narcotics recovered from the petitioner are of commercial quantity. Therefore, petitioner is not entitled to the concession of bail pending trial. It is, however, confirmed and verified that there is no other case pending against the petitioner under the NDPS Act.

4. Having heard learned counsel for the parties, it is apparent that the period of 180 days as stipulated under the provisions of law had expired on 27.09.2014. Till that date, no application for extension of time had been moved by the prosecution. An indefeasible right to be released on bail as per the provisions of Section 167(2) Cr.P.C. had indeed been accrued to the petitioner. He duly moved an application for release on bail on 29.09.2014 though the same was not decided on the same day by the learned trial court.

5. Hon'ble Supreme Court in Union of India through CBI v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014 (3) RCR (Crl.) 534 has held that court is obliged to deal with the application filed by the accused as required under Section 167(2) Cr.P.C. on the day it is moved. Such procrastination frustrates the legislative mandate and a court cannot act to extinguish the right of an accused if the law so confers on him. It has specifically been held that the prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused.

6. Right of the accused to be released on bail accrued on the default of the prosecution in filing the challan within the stipulated period and furthermore, in not having filed the requisite application for extension of the time before the expiry of the stipulated period. An application for extension of time was moved on the very same day when the application for bail was moved by the petitioner. Bail application of the petitioner was adjourned and ultimately dismissed as having become infructuous on 18.10.2014 on account of the extension to present the challan being granted on 18.10.2014 itself (order reproduced in para 4 of the petition).

7. The argument of learned counsel for the State that there is a very huge recovery of narcotics which is involved, is irrelevant in the facts and circumstances of the case. The court cannot delve upon the issue of the quantity recovered in view of the indefeasible right