Judgment

Mr. Deepak Gupta, J.

By way of this petition filed under Section 482 Cr.P.C., petitioner has prayed to set aside/modify order dated 22.03.2023 passed by ld. Additional Sessions Judge, Jhajjar, whereby petitioner has been granted interim bail till filing of challan & the FSL report on an application under Section 167(2) CrPC for grant of default bail, in a case arising out of FIR No.420 dated 06.09.2022 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short ‘the NDPS Act’] registered at Police Station Bahadurgarh, Jhajjar. Further prayer is made to grant regular default bail to the petitioner.

2. As per prosecution allegations, 21.54 gms of MDMA (methylenedioxymethamphetamine), was recovered from the possession of petitioner-Bharat Kumar on 06.09.2022 by a police party on the basis of secret information. The same was taken into possession after completion of necessary statutory compliances. Petitioner was arrested on the same day. As investigating agency failed to file the report under Section 173 (2) CrPC within 90 days, extendable upto 180 days, the petitioner applied for default bail under Section 167(2) CrPC after spending 196 days in judicial custody.

3. Ld. ASJ, Jhajjar vide impugned order dated 22.03.2023, allowed the application to the extent that petitioner was admitted to interim bail till the FSL report was presented to the Court along with the challan.

4. (i) Aggrieved by the aforesaid order, this petition is filed. It is contended by ld. counsel that Section 167(2) CrPC does not envisage any interim bail till presentation of the challan and that in case the prosecution fails to file the final report/challan under Section 173 CrPC within the prescribed period, accused has a statutory right to be released from the custody.

(ii) Ld. counsel has referred to a decision of Hon’ble Supreme Court rendered in “ M. Ravindran Vs. The Intelligence Officer , Directorate of Revenue Intelligence” (2021) 2 SCC 485, wherein it was held as under:

“11. Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by various decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya on the fundamental right to personal liberty of the person and the effect of deprivation of the same as follows:”

“13…Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub”section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the CRIMINAL PROCEDURE CODE , and as such, could be violative of Article 21 of the Constitution.”

11.1 Article 21 of the Constitution of India provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India , (1978) 1 SCC 248 , that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21