Gauhati High Court
Suman Das vs The State Of Assam on 27 April, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010074812021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./958/2021
SUMAN DAS
S/O LATE ANIL DAS, R/O VILL. AGDALA, P.S. BAIHATA CHARIALI, DIST.
KAMRUP, ASSAM.
PERMANENT R/O VILL. CHARBAZAR, P.S. GARUD, DIST. KARIMGANJ,
ASSAM.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP, ASSAM.
Advocate for the Petitioner : MR P SHARMA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
27.04.2021 Heard Mr. P. Sharma, learned counsel for the accused-petitioner and Mr. B. Sarma, learned Additional Public Prosecutor for the State of Assam.
2. This application under Section 439, Code of Criminal Procedure, 1973 (CrPC, for short) has been filed praying for bail of the accused-petitioner viz. Sri Page No.# 2/6 Suman Das who has been in detention in connection with Baihata Chariali Police Station Case No. 394/2020, registered under Sections 379/411, Indian Penal Code (IPC) and Sections 27(a)(b)(ii) of the Drugs and Cosmetics Act, 1940 read with Section 8(c)/21(c)/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (the NDPS Act, for short). The application is preferred on behalf of the accused-petitioner under Section 439, CrPC for the second occasion, after rejection of an earlier bail application by an order dated 12.03.2021 passed in B.A. no. 500/2021.
3. The allegations in the First Information Report (FIR), lodged on 11.10.2020, against the accused-petitioner are, inter-alia, to the effect that the informant, Sub-Inspector of Police & Officer In-Charge, Baihata Chariali Police Station had received a secret information and accordingly, a General Diary Entry being G.D. Entry no. 400 dated 11.10.2020 was registered. Based on the said secret information, he along with a team of police personnel proceeded to village - Agdala and raided the house premises of one Sri Thaneswar Bania. In the house premises of Sri Thaneswar Bania, the accused-petitioner was staying as a tenant. From the house of the accused-petitioner, on being searched, (i) 114 bottles of cough syrups of Codeine and Chlothenirmin Maleate and anti- allergic; (ii) 525 nos. of Alprazolen tables; (iii) 75 nos. of Nitrazepam tables were recovered and seized vide a seizure list, M.R. no. 95/2020. It is on the basis of the said FIR, the accused-petitioner Sri Suman Das was arrested and produced before the Court on 11.10.2020.
4. Mr. Sharma, learned counsel for the accused-petitioner has submitted that the accused-petitioner has been in custody since 11.10.2020 and a period of 180 days has expired on 07.04.2021. Despite expiry of 180 days, the investigation of the case has not been completed as no charge sheet has been Page No.# 3/6 submitted on or before 07.04.2021. In such view of the matter, he submits that in view of Section 36-A(4) of the NDPS Act the accused-petitioner is entitled to default bail under Section 167, CrPC even though the quantity allegedly seized from the house premises of the accused-petitioner is above the commercial quantity specified under the NDPS Act. He further submits that the accused- petitioner is ready to abide by any conditions that may be imposed while granting bail.
5. Mr. Sarma, learned Additional Public Prosecutor has submitted that he has received the case diary of Baihata Chariali Police Station Case No. 394/2020. He has fairly submitted, on instruction, that the investigation of the case has not yet been completed and no charge sheet has been submitted till date. He further admits that no application for extension of the period of detention for a period up to 1 (one) year had been made in terms of the proviso to Section 36- A(4) of the NDPS Act prior to expiry of the period of 180 days.
6. I have considered the submissions of the learned counsel for the parties. The FSL report has shown that the contraband seized and sent for forensic examination has given positive results for narcotic drugs. Evidently, the quantity of the seized contraband constitutes commercial quantity. The issue in this case is whether in the obtaining factual matrix above, the accused-petitioner has become entitled to be released on default bail, in the context of Section 36-A(4) of the NDPS Act.
Section 36-A(4) of the NDPS Act reads as under :
"(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of Page No.# 4/6 the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
7. From the aforesaid provision, it is evident that submission of a report of the Public Prosecutor indicating the progress of the investigation and disclosure of specific reasons for the extension of the period of detention of an accused, arrested in connection of the offence involving commercial quantity, is a condition precedent for extension of the period of detention under Section 167(2), CrPC from 180 days to 1 (one) year. Thus, the pre-conditions for extension of the time period beyond 180 days and to 1 (one) year has to be sought for by submission of a report by the Public Prosecutor prior to the expiry of 180 days. It is only on submission of such a report by the Public Prosecutor indicating the progress of the investigation with the disclosure of specific reasons for requiring extension of the period of detention up to 1 (one) year, the jurisdiction is vested in the Special Court to act on such report and to extend the period of detention beyond 180 days.
8. In the instant case, it has emerged that the period of 180 days has already expired and no report was submitted by the learned Public Prosecutor making a prayer for extension showing grounds. Therefore, I am of the considered opinion that the right of the accused-petitioner in the instant case to default bail Page No.# 5/6 under Section 167(2) CrPC had arisen as soon as the maximum statutory period for detention of 180 days without submission of charge sheet, has expired on 07.04.2021 and he has prayed to avail the said right. For the aforesaid reasons, this application succeeds.
9. In view of the afore-stated reasons, the accused-petitioner is allowed to be enlarged on bail on furnishing a bail bond of Rs. 50,000/- with two local sureties of Rs. 50,000/- to the satisfaction of the learned jurisdictional Special Court under the NDPS Act and under the Drugs and Cosmetics Act, 1940 which the learned counsel for the parties has stated as the Court of learned Additional District & Sessions Judge, Rangia, Kamrup, Assam, subject to the following conditions :
1) The accused-petitioner shall furnish his local address along with proof before the afore-stated learned Special Court;
2) The accused-petitioner shall not leave the territorial jurisdiction of the afore-stated learned Special Court, without prior permission from the said Court;
3) The accused-petitioner shall co-operate with the Investigating Officer of the case and shall attend before him once in every fortnight and as and when his presence is required by the Investigating Officer of the case till the submission of the charge sheet or final report in Baihata Chariali Police Station Case No. 394/2020;
4) The accused-petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
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5) The accused-petitioner shall not commit any offence, while on bail;
6) The accused-petitioner shall regularly remain present during the trial and co-operate with the Court to complete the trial for the above offences, if charge sheeted in the case; and
7) In the event of breach of any of the conditions, the afore-stated learned Special Court shall be at liberty to cancel his bail without any reference to this Court.
The application stands disposed of in the aforesaid terms.
Return the case diary.
JUDGE Comparing Assistant