Karnataka High Court
Inspector Of Customs vs Mr Betrand Tochukwu Ikwuka on 22 November, 2010
Equivalent citations: 2011 CRI. L. J. 1136, (2011) 107 ALLINDCAS 17 (KAR), 2011 (1) AIR KANT HCR 505, (2011) ILR (KANT) 2682, (2011) 3 KANT LJ 506, (2011) 3 KCCR 2387, (2011) 3 ALLCRILR 515, (2011) 3 RECCRIR 350, (2011) 4 CRIMES 31
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22"" DAY OF NOVEMBER 2010
BEFORE
THE HONBLE MRJUSTICE N. ANANDSA" ' '- " '
CRIMINAL PETITION N0.272 1 /2010-: 'fa I I
BEWVEEN:
Inspector of Customs
HQRS, Preventive Unit
Central Revenue Building
Queens Road r * -- -
Bangalore -- 560 001. ..v,"v'?3'etitioner
[BY Sri.U1'val.N.Rarnanand';. _I.£v¥;1'.'\()iA3_€:1tt2'?{:3' 'C "
AND: I
lVIr.Betrand "
Holder Qf.pass;p.g£t Nt3:FA :2,9'1a_5'8:§
Issued by the FeVdVera.l'jRepnbl.i_c of Nigeria Respondent
[By Sri.PI'mar«_CorreVa' Advocates)
This petition is Iiiedlunder section 439(2) Cr.P.C., praying
to set "aside the order" dated 06.03.2010 passed in Special
C.C_."No.1€35/2009 b'_v.t_he.X.>Q{III Additional City Civil and Sessions
. Chdudge and Special Judge [NDPS), Bangalore (CCH~33), granting
»::onditional.bail"'to the respondent and dismiss the bail application
I' . ated 1.5;'Ol6.2.009_';1"iled by the respondent under section 37 of the
NDPS__ Aet; w
This petition coming on for orders this day, the Court made
the following:
A gis.t
ORDER
The respondent is arrayed as accu_sed'@'No.1 (hereinafter referred to as 'accused No.1} C.C.No.l65/2009, on the file of Ad'dl.----i:CityV: CiV1l...i&". Sessions Court and Special Co_vurt_-A-for 'Cas-.estA:1Ve_at Bangalore, pending trial for-.__ offeneels sections 21, 23, 27(A), 28 & 2Q_jvof_thetNa.rcotic Vlamgs and Psychotropic Substan'cie.s'«Act..A 1'§'5..3V5'4{.i'ori'short, 'the Act').
2. As per documents by Inspector Bangalore (for short and 2 were caught red handed by' 'Customs on 20.02.2009 when they Were"h_ooking parcels to Netherlands, Spain andgtlnited which heroin had been concealed. the complaint as stated in the impugned order is as fo1iiows:--
"On 20.02.2009 G.Chetan, Inspector of xCt1stoms, HPU, Bangalore on the gathered intelligence goes to M/s.Blue Dart Express, 6/1, A; x. ['?'L.u......
3 Ci.
60 feet road, 6"' Block, 5*" Cross, Koraniangala, Bangalore --- 95 and therein accused No.l- Betrand Tochukwu and accused no.2f Ms.Daphira Wallang have booked shipments to Netherlands, Spain and Kingdom and got prepared four airway _ four cash memos dated Kashi working as operation exezcfuutivegof .« Blue Dart Express _ and vliwhen 'LT.l;€"S€:. " f'ou'r1 shipments were retriev~@QQ:1'-.and c.heckedlVtheygWer'e:
containing ladies night _ .. ngfi and shin guards bivuttpons and sin guards ivory colourelgtv.'7powderVAA_'.ii.V'b' and brown coloured_:Vpowde'r" and on test they _Vr_esp;on_de.d".positive -.ro':- lthe heroin, i.e.,
7.Vbiacetyl-"Morphine; '~t.c_)"i--al-ly t.here it was recovered grams' "coloured powder + 1024 _ grains ofV1vory~._coiolured powder -1- 362 grams of brown .co--lou_H1_-ed powder + 485 grams of brown :"colz)u'red powder, as they all answered positive heroin, i.e., Diacetyl Morphine, total heroin thatifwas recovered was 2565 grams and in this regard OR. No.23/O8mO9 was registered against it 'accused Nos} and 2 for the offence U/Sec.8 (c) read with Sec.2l, 23 and 29 of the NDPS Act."
Accused No.1 was arrested on 21.02.2009 and his remand was being extended from time to time on the applications filed by complainant. On 15.08.2009,Vac_cu_sed No.1 made a bail application under section g:>«,_{:t'. On 16.06.2009, the complainant filed the = Chemical Examiner from C€'.:1'1t1'¢:';1l--z:'R"€',\.f'€1f11V.'I\"i3"VVC_Q1'i'§1'f)l Laboratory, New Delhi, indicating that jiseizedlle. contraband (heroin) total narcotic": substance is 643.6 grams. The coV1npl--ainant§V--opposedbail application by filing objections on 25,t.o61.20d.9.§,yo;i~-.é01;.t:8--)'2oo9, complaint [the final inlVest;igatio11}:Vanchnecessary documents were i_:filed._A accused No.1 filed a memo before the trial .__C'C:urt, 'hereunder: -
5' » ''fl'hefAcAC'uvsed humbly submits that, he ;_h_aw'.ng ayaiieu of the benefit and the indefeasible ..right._a'ccrued under section 167(2) of Cr.P.C r/w , the accused no.1 hereby' confines hi.s:"praye1' and arguments thereof only on the ~. mandatory bail ground and not on the merits of the case, in the interest of justice." !\.-5 <1 - £91»
3. The learned Special Judge on hearing learned counsel for parties, granted bail to accused No.1 in terms of the impugned order dated 06.03.2010. Aggrieved by the same, complainant is before this Court seeking cance1lation.loi'»hail.
4. I have heard Sri Urval N.Ramanand, counsel for complainant and Sri Amar..Correa.--.:'learnedu counsel for accused No. 1.
5. On consideration of the ordegr,.".l.fiiid learned Special Judge has 'granted bail: No.11 under section 167(2) SpeciallVJudge has confined coi1iSider7atio--n."'of bail in terms of the memo as aforestated. M
6. V. _Sri lU1_'Val_.5-N.Rarnanand, 1earned_ senior counsel V. , ap.plearing'~--for complainant has made following submissions-
alleged against accused No.1 and _.loe:ffences for which complaint was initiated against accused No.1 are punishable with minimum sentence of imprisonment for ten years and II.
Ill.
6 maximum sentence of imprisonment of twenty years. in terms of section 36-A[4} of the Act, the complaint had to be initiated within a period of 180 days from the date of arrest of accused No. Accused No.1 did not exercise so-called~i--ndefeasihle right at any point of time, application filed by acc:nsedpRio'I«1 indicates that accused7.AN*o.1 wasp." exe1:cis:ng., indefeasible right undereection .lv_67s[l?§} The learnedi" 0' shotillidlivv not have accepted the meniolb 1for~.._lVco>iisicleration of bail application 'l:l:I>'l'C.1§I" section 167(2) Cr.P.C., more " complaint on completion of inVe.stigation lodged complaint and all the re.levantVV"'documents on 19.08.2009 Within the 3 restrictive prescribed under section 36»A[4} of the Act. learned Special Judge should have considered provisions contained under section 37[1][b} of the Act.
J13,' »,,_.
V. From the documents filed along with complaint it is not possible to arrive at a conclusion that there are reasonable grounds for believing that accuse:c_i--.»lV\'i'oVi'1 is not guilty of such offences under .
27[A), 28 and 29 of the Ac_t...air1_d "
to commit such offences \:2:vheI,1'_'_'ori b&a'L.1_hb_ l' V i '7. The learned senior co'o:n's~exl fort-he conipllainawrit on the following decisio_ns:~ i A b A l H I. AIR 1990 sc T .[Airi_ %.thg_e' Rcynikant Jiuanlal Patel ar;othe.;{:'va llofficer, Narcotic ii :1. (in the case of Dinesh Dalmia _ . V. 8." S'ri.Arnar Correav, learned counsel for accused No.1 has rnade f_ol1_owing"submissions:~ A V. .'l'h~e'indefeasible right accrued to accused No.1 was " exercised on time by filing bail application on 15.08.2009 by which time it was not made known II.
III.
by the complainant as to whether quantity of contraband seized from accused No.1 wolul.dl'~»_fali within the definition of small commercial quantity as stated in"'itc:ro,l'iJo;56 table to the Act.
Accused No.1 had made necessary aVe:'n1€:nts in tile' ; bail application.
Accused No; 'fiat error by filing a memo, . _confini.ng:_ _, indefeasible right ylfjif/lé} trial Court has not in the bail application u_ntier secT.ionV.1'67(2} Cr.P.C. IV. whom similar allegations are niade was enlarged on bail under section 167(2) . Cr..P.C. complainant was unsuccessful in cancellation of bail before this Court in .lCifiir1inal Petition No.2411/2009 dated 03.08.2009. In the matter of consideration of bail petition under Chapter Xlli Cr.P.C., or 167(2) Cr.P.C.. the Court g-\_}( _ 'ff! -x...--§L'\/\-W4/in 9 should not consider technicalities to eclipse the liberty accused.
9. In support of above contentions, learned counsel for accused No.1 has relied on the following d€ClSl0I'1SI_"zVV'. ll
1. 1992 AIR sew 2621 (in the case of Desai v. State of Maharashlf;trcp1)p. 'l V
11. 1991(1) sec 705 (in the-.__ Bureau 1). Kishan otlhers)_p l 'l
111. (2008) 1 sec (cm) case .of:lDintEsh Dalmia v. CB1). . l H H for accused No.1. relying on the above if accused No.1 were to abide by the conditioiisltha-t inlay be imposed while granting bail W.0uld_be sufficient to meet the provisions of section 1'()_,r It. in dispute and it cannot be disputed that on O8.06.V2_AG09, on completion of investigation. complaint was initiated, alleging offences punishable under sections 21, 23, 27A, 28 & 29 of the Act. It cannot be disputed that on 08.06.2009, Assistant Chemical Examiner from p.C__entral Revenue Control Laboratory, New Delhi submitted which indicates presence of 643.63 grams"
substance out of total quantity of.2~.565 this quantity would be commercial c1'uan'_tit_<,} No.56 of table to the Act. lnl_t'e;ta1s oi" spection,IA3l73.o:--Px{4l.} "of the Act, period of limitation for c_o_1inpletion of investigation and initiation of complainlt/lcl1.ai'gesheet'«l:i's_Ti--80 days from the date of arrest of'accuse£i;"~ -- V l
11. in the for determination iS2~ learned Special Judge was . ' "_j1__J..SfifiV€d considering the bail application filed accused"i\J'ol.1 on l5.06.2009 as one filed
--u_r1~c1'_e::: section 167(2) Cr.P.C., in View of memo « VVliie'd._by{;'the learned counsel for accused No.1 on after the complainant on completion * of; investigation initiated complaint on 10.08.2009?
12. it is needless to state that when accused invokes the provisions of section 167(2) Cr.P.C., the Court woulid<«..g'I°--ant bail as it lacks power to extend remand of if report under section 173(5) Cr.P.C.M,mis not'fiied:'_within..tirne' specified therein. In a way rightito s_pe'ek:'bail_C 167(2) Cr.P.C., accrues to accused due iavpsgon part of investigating officer.
In th%e'case on the provisions of Section 35¢' the _hereuunder:-- 5 " triable by Special
Coui*ts.I-. Vii; 'C:"i§Foti2iritthstanding anything contained in the Code of"
1973~ iii' ' fnipgitj C [a) all offences under are punishahie" with i'r'r1p_risonn1ent for a ofhrriorsfi than threetttjftears shall be triabletf " o.nI'y._ A Special Court consti.tu.ted it in which the 'x°'o_ffence "has committed or where ..i_C[jt.there are more Special Courts than one for.fsuch"«area, by such one of __ .
may be specified in this behalf by the Government:
{b} where a person accused suspected of the COIl1I'11iSSi0I}.~_r:Of offence under this is f01'\«'v'31'd--.é':d to'? Magistrate under izisubfpsiectioriip sub section {2A] of:'S_ect._ion 1»6'._?A.ofVthe Code of Crin1_in.a1 Procedure, A such Magistratefrnay authorise tithe detention~..p_ of person "such custody ' for a period .1'1.~§'1§ eXC€'ediIi§§ fVifC".3.'E'?r_1':ivn".the whole a Judicial .candV":seyeI1»--days in the whole ~~~~ iVIa~gistrate is an Executive it V' 18/ia'gistrat'e __ - d pp " Provided.that"in='cases which are triabie by _the t"~speiciai__ Cou.rt where such Magistrate . « considers V when such person is forwarded to _ him as aforesaid; or {ii} upon or at any time before the expiry of the period of detention authorised by him; 1, 7X3 . M V I that the detention of is unnecessary, he shall order such person to be such person forwarded to the Special Court havivng.._r'r._ jurisdiction;
[c] the Speciai Court may relation to the person »forward'e€l::'_t0'V"'it under clause [b],flb th»€__'V'S,-El'I4I]€.:<"pQW€I'v.,_hh"V'V which a Magistrate h.aVi'ng jurisgdicticanii to try a casefrnay "exerci_sé.. Section 167 of CVode'.ofV:Crimi1'1a1 P1'OC€dLl.'i'€'q'_ .Tre.Eationvv"toAVV an accused case. who has been fOi'i7\fa1'ded" iiinder that perusal of reoort_ of the facts constituting anr'offenc&e"'<1i'nder this Act or upon "made by an officer of the V or a State Central Government Government authorised in his behalf, take cognizance of that offence without fthe accused being committed to it for tria}.
[2) When trying an offence under this Act, a Special Court may also try an ofence > in ;>x»» ;'\/'.c"-.« '3"r-m other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charge at the same trial. H (3) Nothing contained in this shall be deemed to affect the special powers', '7' the High Court regarding bail under '-
of the Code of Criminal Procedure;
the High Court may V exercise'-gsuchl" ipowersll V including the powers clause section (1) of that sectionlals if the referenceg to "IVIagistrate" in se'<§fi'o~n7j_ iricludedlvvalso a reference to a "Special corr1s.tit'tuted under Section V -' [4] 'll:/l--}..l'v1'€.t:i':j.}'3€él'3:'["V.('V)f lpersorisaccused of an offence 'punl'shab'le 'under~~Sectior1 19 or Section 24 or Seéztioériw 2'Z_?A~.__or -l for offences involving commercial "the references in sub-
_.section {2} of"v._Se'ctioril167 of the Code of Criminal Procedure,'----ViV9_?_3. thereof to "ninety days", when _"o'c._cur, shall be construed as reference to = hlundjred and eighty days":
d'v~Vlrj'ji3'rovided that, if it is not possible to complete the investigation Within the said period of one hundred and eighty days, the Special E Court may extend the said period up to Fe year f\;=(___,_,./_,L__/_ &.L.\t{é,', 1' 167(2) on the report of the Public Prosecutor indicating the progress of the investigation and the spec_ific'f"._ reasons for the detention of the accused ~ "
the said period of one hundred and eightyfdayspé 2." g (5) Notwithstanding; anything contained" _ in the Code of Ciiminal Procednre,"'.sy19',73--, 4the__ offences punishable Vunder, this '1v1th':.' imprisonment for a terrnnot more years may be tried sumn1a"rily.}77_ . l b Thus, we find (4), section to 36~A vests discr'etiona.1'y"'p:5Wer.y.rj_th.V'.th.eV"$pecial Judge to extend the'period;:speci'lied- in (4) up to one year on the reportof indicating the progress of the inifestigation th'e_:speci.fic reasons for the detention of accusedfb.eyond'ihe' of one hundred and eighty days.' "'vVe do notfllfind such enabling provision under section on hand, reading of complaint and docume_nts_annexed to complaint would establish a prima facie c'ase against accused No.1 for offences punishable
--.i:n.r:1e} sections 21, 23, 2'/"(A], 28 and 29 of the Act and '4; 1 E-l~"«'-'C61: 1 36?
narcotic substance seized from possession of accused no-1 falls Within the meaning of commercial quantity and"-period of limitation for completing investigation and :._initEat1'iQfi-'._.oi.V complaint was 180 days from the date of.of'=accus_ed". No.1. In the circumstances, bail No.1 on 15.06.2009 shou1d"no«t1._Vhave'-been section 167(2) Cr.P.Ci Even .':0':fi'-,',v<:3'1"'t?\Zl'»S€,' 'i1i.'ti§i1 application filed on 15.06.2009, stateduthat nature Of a11€gati0I1S .iagai"v5t" vrp'01.:0€.!3,[."0'0"attract. offences punishable_Vu.ndder. 81 29 of the Act or that offencesi:.'d,oMnoi,' 'ctoIn:inercial quantity. Accused No.11.:l'1as of section 36--A, which vests to extend remand oi accused beyond the s.peciiied."-period and governs period of limitation is-r in"itiat.ing '¢£5£fip1aint filed for offences involving 0 0 .:_orn1n_erci'al 'qu;-ant,ity.
p other hand, in paragraph 14 of the bail to " application, accused No.1 has stated as hereunder:--
"K. £}\,».,"«c.CQ\ , "That the accused submits that he is ready and willing to abide by all condition;s.,:7.._ imposed by this Hon'ble Court undertakes to be present on every hearing and also undertakes; not to dbr'__;gV delay the process of justice."f_ That on 17.09.2009,Vaecused'-.No,1 reading as hereunder:--
"The Accusedfno.t_1 l;Viuvrrit3ly'A:sv._bmits that, he having availed the indefeasivbpiel right: slection 1 67(2) of Crll?.iC3f 43'9_1Cr.P.,C.Af,Vthewaccused no.1 hereb::y__ prayer; and arguments bail ground and not onv..Athe'inerifts:'l in the interest of justice."
13.» In the rriemo--«'iiled by the learned counsel for accused'Nog.iv,__the-learfned Special Judge considered the bail applicatitori section 167(2) Cr.P.C., which in my 7,_cor.'sidered ..opinion is erroneous approach. The learned ; judge has not looked into the provisions of section "J S 6,... '1 37--A of the Act, complaint and other documents to find out nature of offences alleged against accused No.1 for satisfaction of the Court as to whether there believing that accused No.1 has not "
offences.
The consideration of .application _"'_inff"aavcase of instant nature, primarily involves. tl1re'e..aspects'-viz(1) liberty of accused, {2} interest of andnatio11 at large and {3} statutory restrictions The iieaifnedv S};\ecialf_A..J;udgeVtajiipears to have swayed away b.yj"a_ccu_sedWNo.1 to hold that accused No.1 had indefeasit§leffrigh't. to assert before the Court that bail _applica't1'o_:n should considered only on the ground, he Wi_shesHto'"u'rge. As already stated. on 15.08.2009; a'Vppli'cation was made, the period of limitation in of 'section 37--A{4) of Act had not expired. Therefore. no indefeasible right had accrued to accused No.1.
14. The learned counsel for accused No.1 would submit that Assistant Chemical Examiner's report was sularni'tted_ on 16.06.2009. Thus. as on 15.00.2009. it xv..s{é"'ri~é:t,f:__0i.3;grt_g whether quantity of contraband seized from» was small quantity or commercial.---qu'ani;ity. it-ol"*-consider offences alleged against accused No.llA.V_
15. This submission:.._ca-nnotl for rfieife than one reason. The nature of determined on consideration completion of investigation.--f_lit=_la filed under the provisions of the iconsidgelratliorrfloi'_hail'application is governed by the prowf_sions'o..f:"'i'iie non--obstante clause occurring in the comrnencernent of section 36--A gives a clear indication ~ ., W/fovisions olflsection 36--A have over riding effect on the 1 "p_rovis_i'o.ns to-fllsection 167 of code of criminal procedure, the finding of learned Special Judge that indefeasible right had accrued to accused No.1 on "1.$j.'O6.2O09 for failure of the complainant to produce iv. [:3/'=a..»~.c&.
'20 Assistant Chemical EXaIniner's report to indicate 3 actual weight of narcotic substance out of total weightcvof-.s_ei,zed contraband and such indefeasible right which to accused No} was not defeated the Assi'sta'nt'VC:hernicaI'V . Examiners report filed on 16.06,20:09..:'and_0the' filed on 20.08.2009, is erroneous.
16. In a decision rep'orted inthe case of Rcynikant Jivanlal Patelih r-t;.:[h*i'telligence Officer, Narcotic «itsvupreme Court has he1d:- 00 it 0 A """ -.JV":-12.'V':::3i.:.A;T1Kflrdél' for-.re°lease on bail under Zjproviso may appropriately be "on--defau1t. Indeed, it is a V_ 2 release'on_baii--._on'~*the default of the prosecution Vfiiing'~ ch_arge--sheet within the prescribed The right to bail under S. i67(2] proviso is absolute. It is a legislative V and not Courts discretion. i_t_1'_1_e 2 "investigating agency fails to file charge-sheet "before the expiry of 90/ 60 days, as the case may be, the accused in custody should be released ' L\L,. 'x.£r»- *1,"
21
on bail. But at that stage. merits of the case are not to be examined. Not at all. In fact. Magistrate has no power to remand a beyond the stipulated period of 90/60 days, must pass an order of bail andgycomrnunioate, ti'1ev", same to the accused to furnish jrequis_i'te: it bonds. V __ it E
13. The accusedl.c'a~nxnot,A""therefore. any special right to rei"nain.u on It If lithe investigation reiteals "xhas committed a serio'us_i_oflenc'e:' and'v:b.c_harge--sheet is filed, the .~.bail grained V "u.;i_d_e}§*. pi}'§i§}iso (a) to s.167(2:i ciimd b¢'.¢ai;cé11:§d.ff '
17. in. irieiir i1.asi..been-----st.atled in the above decision. it is clear:even'u'Lii'1der.'section167(2) Cr.P.C., if accused is released o'n__4bo.Vil of the prosecution to file charge she,e_t' 'Within prescribed period, if after charge sheet is there -airevsuificient grounds to cancel bail, bail granted be cancelled. Ultimately, the documents filed'*und:er'vsection 173(5) Cr.P.C.. would be relevant to decide ..i'na.ti__1re offences alleged against accused and period of limitation for filing final report under section 173(5) Cr.P.C. 7/\} . Q, -\_... ,./3x.«.~« £63.',
18. In the case on hand, on 19.08.2009, on completion of investigation, complaint was initiated by the and much before the initiation of eornpla.int.''~._conj;piainant_ 0' had submitted Assistant Chemicaflfi on 16.06.2009, indicating weight of"._na'r_cotic 643.63 grams, which is commercial quaritity at if item No.56 of table to the Act?'Int;'thetcircumstances, there was prima facie material Special Judge to hold that acts "alleged attract offences punishable. '~--f2_..:%3..1:27.r>t.'VV28 & 29 of the Act. The for such offences is and maximum punishment is twenty yearsin 36-A[4] of the Act, period of limitatioii for cotmpletion of investigation and initiation of days. Therefore, order of the learned fC~3pe'cial"Jii_dgeV~f.g1*anting bail to accused No.1 by holding that accfu'sed--..V:l\.¥o. had acquired indefeasible right on 15.06.2009 the report of Assistant Chemical Examiner had not been a._9fi_IVe'd"on 15.06.2009 and filing of the Assistant Chemical f\t Q~.«'\..L*--~€a7\_' Examiners report on 16.06.2009 did not take away the indefeasible right accrued to accused no.1 on 15.06.T20l_O9)_is €ITOI'1€OL{S.
19. The learned counsel for accused .subinitted while considering bail app1icationA:4eiti'ier*iVunder Cr.P.C., or section 167(2) cr;ié;c:, the-Court sh'ouE'd.._not'3 got by': > technicalities to eclipse the 1il3_e_rutyVof..accusedl71 I
20. in my considered'opinion: to accused No.1 under section '_jerrof1'eous. The learned Special 'the"'4provisions of section 36--A and section 37* l tl1evdisVc'us:_si.on'supra, I have held no indefeasible right had*accrue-(1l~-._to"*'"accused no.1 on 15.06.2009 or suloiseguexatly. "l'iie"Vinvestigation was completed and the "'con1p'1'aint"'wfa's initiated within the time specified under 'section of the Act. Therefore, submission of learned counsel; for accused No.1 cannot be accepted. '*------ fink Cf/fix.
21. The learned counsel for accused No.1 would submit that paragraph 14 of the bail application extracted supra is sufficient to indicate that accused No.1 had exe1fc.ised.his indefeasible right under section 167(2) Cr.P.C. 1
22. In the discussion made supra, l'.'ha'v--el'j"
accused No.1 had not acquiredilindefeasible'-.'tightV:"t1_n'dcf section 36--A of the Act. 1 'V 1 1 ll 3 1
23. The learned counsel No.1:.wouldfisubmit if accused No.1 does under section 157(2) C'r.P.C., itis the.Vdu.tyV01;-VQoui;t"toéfiugshold indefeasible right avaiiable 1-157(2) Cr.P.C. and grant relief to the accused, . 1 lvn'suppVo1"'tof same, the learned counsel has relied » on ajtildgnlfilfii reported in 2001 SCC (Cri) 760 (in the case of 1' flday ill/Io«hanl§1l'V..Acharya v. State of Maharashtra], relevant ~V the judgment reads thus:~ rm availed benefit available under section 167(2) Cr.P.C., and the complainant was before this Court for cancella1;.ion~«oi'~bail in criminal petition No.241l/2009. This criminal petition No.2411/2009._Ifh1s court'Iij1n""cr:m1::ia1~. Petition No.241 1/2009 dated 03.08.2909 has referdreg-si.t:ov:.::1~;e importance of Assistant Cltieinical E-Xaminer"sC_reportL 'i'lr1is'K Court has held if on receipt: of is quantity of contraband seized punishment would be for _a perio.d.:'_of in which event complaint; 'initiated This Court has held if ' of' commercial quantity, miniinurnd is imprisonment for ten years 'and provided is imprisonment forgiwenity lye-ars'and'in such an event, complaint has to be . * .iniitiat'ed vvithin a'fié'i~Ciod of 180 days. ' petition N0.2é}1l/2009, this Court has acécepiiepdhthe submission of learned counsel for accused No.2 it that even on the date of grant of bail by the trial Court, A. .....
bail. The learned Special judge has held that report 'filed on 16.06.2009 and complaint filed on 19.08.2009 did".n:0t_l'i:ake away right accrued to accused No.1 on approach of learned Special Judge....is_ err0r1e0u:s'5.ifheéreforef» bail granted to accused No.1 canriot csustain'ed".' '
28. In the result, 1 pass tlrie it The criminal petitliorjp. bail granted to respondent/accused llmruka in Special file of XXXHI Addl. City Civilfsi Court for NDPS Cases at Bangialcrel is " V. .
Iudgé