The accused has an indefeasible right to bail if the final report is not filed within the statutory period as per Section 167(2) of the Code of Criminal Procedure.

O R D E R

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 , by the third accused in Crime No.1034/2023 of the Mankara Police Station, Palakkad, registered against the accused, for allegedly committing the offence under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner had surrendered on 06.12.2023.

2. The gist of the prosecution case is that; on 30.11.2023, at about 17.30 hours, the accused 1 and 2 were found in possession of 15.058 kg of Ganja and Rs.2,50,000/- in house No.VII/288 of Mankara Panchayat. The accused 3 and 4 escaped from the scene of occurrence on seeing the police party. Thus, the accused have committed the above offence.

3. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondent.

4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime based on the alleged confession made by the second accused. There is nothing on record to connect the petitioner for committing the above offence. Notwithstanding the other contentions that have been raised in the bail application, the final report has not been laid. Therefore, the petitioner is entitled to compulsive bail in view of the proviso to sub- section (2) of Section 167 of the Code of Criminal Procedure.

Hence, the bail application may be allowed.

5. The learned Public Prosecutor opposed the bail application. She contended that the petitioner has criminal antecedents. The petitioner’s earlier application for bail was dismissed by this Court as per Annexure-2 order on the specific ground that the petitioner was having criminal antecedents. Nonetheless, she conceded to the fact that the offence alleged against the petitioner is punishable for a period of less than ten years and that the Investigating Officer has not laid the final report till date.

6. Sub-section (4) of Section 36A of the Act prescribes that, for offences punishable under Sections 19, 24 or 27A or for offences involving commercial quantity the references under subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 shall be 180 days instead of 90 days.

7. In the case on hand, the petitioner is alleged to have committed the offences under Section 20 (b)(ii)(B) of the Act for allegedly being in possession of 15.058 grams of ganja. Indisputably, the said contraband is of intermediate quantity. Therefore, Sec.36A of the Act does not apply and only proviso to sub-sec (2) of Sec.167 of the Code of Criminal Procedure applies. Admittedly, the petitioner was arrested on 6.12.2023, which is more than 60 days and the final report has not been laid.

8. The Constitution Bench of the Honourable Supreme Court in Sanjay Dutt v. State through C.B.I., Bombay [ (1994) 5 SCC 410 ] after laying down the principles, recorded its conclusions, of which conclusion 53 (2) (b) is relevant for this case, which is reproduced below:

"53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20 (4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The ac