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MADRAS HIGH COURT
MOHAN – Appellant
Versus
STATE REP BY – Respondent
CRL RC/1715/2022
BAIL - STATUTORY BAIL - NDPS ACT - [SECTION 167(2) CR.P.C.] - Petitioner arrested for offences under Section 8(c) r/w 20(b)(ii)(c) of NDPS Act - Statutory bail application filed after 180 days of arrest - Respondent police filed an application under Section 36A(4) of NDPS Act for extension of time for filing final report on 179th day - Trial Court refused bail to the petitioner since Extension Petition was pending - Held, the order of the trial court is unsustainable and the same is liable to be set aside - Petitioner is entitled to be released on statutory bail.
Fact of the Case:
The petitioner was arrested for offences under Section 8(c) r/w 20(b)(ii)(c) of NDPS Act and was in judicial custody for more than 180 days. The respondent police filed an application under Section 36A(4) of NDPS Act for extension of time for filing final report on 179th day. The trial court refused bail to the petitioner since the Extension Petition was pending.
Finding of the Court:
The court held that the order of the trial court is unsustainable and the same is liable to be set aside. The petitioner is entitled to be released on statutory bail.
Issues: Whether the petitioner is entitled to statutory bail under Section 167(2) Cr.P.C.
Ratio Decidendi: The court relied on the dictum laid down by the Constitution Bench of the Supreme Court in the case of Sanjay Dutt Vs. State Through B.I, Bombay (II) (1994(5) SCC page 410) which has been re-affirmed by subsequent judgment of the Supreme Court in State of Madhya Pradesh Vs. Rustam, reported in 1995 SCC Crl.830, if an accused filed an application for statutory bail, on the expiry of the period contemplated under the proviso to sub section (2) of Section 167 Cr.P.C., and offering him to release him on bail, no charge sheet had been filed by the respondent police, then the accused has to be released on bail and the right conferred upon him under the aforesaid provision of Cr.P.C., must be enforced.
Final Decision: The court set aside the order of the trial court and directed the petitioner to be released on statutory bail.
Crl.R.C.No.1715 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.R.C.No.1715 of 2022
Mohan
...
Petitioner
/vs/
The State represented by,
The Inspector of Police,
P-2, Otteri Police Station,
Chennai.
Crime No.490 of 2022
.. Respondent
Prayer : Criminal Revision Petition is filed under Section 397 and 401 of
Cr.P.C., to set aside the order passed in Crl.M.P.No.5929 of 2022 orderd on
29.11.2022 on the file of the Principal Special Court for NDPS Act cases at
Chennai and enlarge the petitioner on bail under Section 167 (2) of Cr.P.C.,
in crime no.490 of 2022, pending on the file of the respondent.
For Petitioner
... Mr.Ramesh
For Respondent
... Mr.V.Meganathan,
Government Advocate (Crl.Side)
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Crl.R.C.No.1715 of 2022
ORDER
Challenging the impugned order dated 29.11.2022 passed in
Crl.M.P.No.5929 of 2022 in Crime No.490 of 2022 on the file of Special
Court under EC & NDPS Act, Chennai, the present criminal revision case
has been filed.
2. The Learned Counsel for the petitioner contended that the
respondent police registered a case against the petitioner as the first accused
in Crime No.490 of 2022 for offences under Section 8 (c) r/w 20(b)(ii)(c) of
NDPS Act and he was arrested and remanded to judicial custody from
24.05.2022. As mandated under Section 167(2) of Cr.P.C, within 180 days,
final report has not been filed. Hence, the petitioner filed statutory bail
application before the trial Court in Crl.M.P.No.5929 of 2022, which was
dismissed on the ground that the respondent police filed a petition on
18.11.2022 under Section 36A(4) of NDPS Act, for extension of time for
filing final report. It was unsustainable. Hence, seeking to set aside the
impugned order passed by the trial Court and to enlarge the petitioner on bail
under Section 167 (2) of Cr.P.C.
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Crl.R.C.No.1715 of 2022
3. The Learned Government Advocate (Crl.Side) for the respondent
submitted that the respondent police filed an application under Section
36A(4) of NDPS Act, on 18.11.2022. As on date, no order has been passed in
the application for extension of time for filing the final report, but the
petition filed to enlarge the petitioner on bail has been dismissed.
4. On perusal of the records the fact reveals that the petitioner is A1 in
Crime No.490 of 2022. The respondent police registered a case against the
petitioner for the offences under Section 8(c) r/w 20(b)(ii)(c) of the NDPS
Act and he was arrested and remanded on 24.05.2022. The respondent police
seized the contraband of 22 kg ganja, which is of commercial quantity. After
investigation, the respondent police has not filed final report within statutory
period of 180 days. Hence, the petitioner filed a petition under Section
167(2) of Cr.P.C., in Crl.M.P.No.5929 of 2022 for statutory bail on
21.11.2022. Further, the facts reveals that the respondent police filed a
petition under Section 36A(4) of NDPS Act, only on 179th day i.e.,
18.11.2022 for extension of time for filing final report. The trial Court
refused to grant bail to the petitioner, since Extension Petition filed by the
respondent police has been pending. Therefore, on the date of deciding bail
application filed by the petitioner, the time for filing final report was not
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Crl.R.C.No.1715 of 2022
extended. Therefore, in view of the dictum laid down by the Constitution
Bench of our Honourable Supreme Court in the case of Sanjay Dutt Vs.
State Through B.I, Bombay (II) (1994(5) SCC page 410) which has been re-
affirmed by subsequent judgment of the Supreme Court in State of Madhya
Pradesh Vs. Rustam, reported in 1995 SCC Crl.830, if an accused filed an
application for statutory bail, on the
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