ORDER

Date : 04-10-2021 Heard Mr. B. Mahajan, learned counsel for the petitioners.

Also heard Mr. B. B. Gogoi, learned Additional Public Prosecutor for the State.

2. This application has been filed by the petitioners, namely, Pranjit Rabha, 2. Putul Rabha under Section 439 of Cr.P.C. seeking bail in connection with the Special (N) Case No. 02/2020 under Section 20(b)(ii)(C) of the NDPS Act pending in the Court of Special Judge, Udalguri arising out of Mazbat Police Station Case No. 84/2019 under Section 20(b) of the NDPS Act.

3. The petitioners were arrested on 21.10.2019 in Mazbat Police Station Case No. 84/2019 under Section 20(b) of the NDPS Act. The learned counsel for the petitioners submits that the petitioners have been languishing in custody since their date of arrest and bail petitions filed before the Special Judge, Udalguri have been rejected.

4. The learned counsel for the petitioner submits that the mandatory period of detention in custody as provided under the statute i.e. Section 36A(4) of the NDPS Act read with Section 167 of the Cr.P.C. had long expired. In spite of such specific statutory provisions, the prayers for bail by the petitioners have been rejected by the Special Judge, Udalguri.

5. The petitioners are before this Court being aggrieved specifically by the orders dated 04.05.2020 and 09.06.2020 passed by the Special Judge, Udalguri whereby their prayer for bail have been rejected. The learned counsel for the petitioners submits that as per the law laid down by the Apex Court a person will have to be released from the custody, if the mandatory period of detention expires and no charge-sheet is filed or no application seeking extension of time by the Investigating Officer is filed before expiry of the mandatory period. The learned counsel for the petitioners submits that they were arrested on 21.10.2019. Therefore, the mandatory period expired on 18.04.2020 and till then the charge-sheet was not filed nor was any order passed by the Special Judge, Udalguri extending the period of investigation beyond the mandatory period. The learned counsel for the petitioners has vehemently argued that upon expiry of the statutory/mandatory period, the right of the accused for grant of bail/default bail under Section 167(2) accrues automatically. He, therefore, submits that in spite of specific submissions made before the trial court vide impugned order dated 04.05.2020 and 09.06.2020, the applications and the prayers of the petitioners for bail was rejected.

6. The learned Additional Public Prosecutor submits that charge-sheet in the meantime has been filed in the matter and the same is pending trial before the Special Judge, Udalguri as Special (N) Case No. 02/2020 under Section 20(b)(ii)(C) of the NDPS Act. He, therefore, submits that at this stage release of the petitioners on bail is not called for since the trial has proceeded in the matter.

7. We have heard the learned counsel for the parties. The scanned copies of the trial court records called for have also been received. By order dated 29.04.2021 a specific report from the Special Judge, Udalguri was called for by this Court in respect of the date of filing of the FIR, receipt of the same by the Court, the charge-sheet being laid before the Court and taken cognizance thereof.

8. The said report called for have been received vide communication dated 01.09.2021 and the same is extracted below:-

“3.5.2021 Special (NDPS) 2/2020 The case record is put up as the scan copy of LCR has been called for by Hon’ble Gauhati High Court along with the report in respect of filing of FIR, receipt of same by the court and the date of filing charge-sheet and cognizance taken by the court in respect of the case vide order dated 29.4.2021 passed in connection with Bail Application No.931/2021.

So, I hereby submitting the report on the basis of documents available in the case record.

As per case record the FIR was lodged at 9 a.m. on 21.10.2019. The FIR was seen by the court on 21.10.2019