Gauhati High Court - Itanagar
Sankar Biswas Son Of Shri Barun Biswas vs The State Of Ap Represented By The Pp Of Ap on 29 January, 2026
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GAHC040020342025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
(ITANAGAR BENCH)
Case No. : Crl.Petn./274/2025
Sankar Biswas Son of Shri Barun Biswas, permanent and present resident of Village 2
No Parbatipur, PO Merbil, PS Laluk, Lakhimpur District, Assam.
VERSUS
The State of AP represented by the PP of AP
Advocate for the Petitioner : Pritam Taffo, Lata Beyong,Rosy C Lowangcha,Preety Moyong,Tana
Rini,V Mandal,Eho Menjo,Minter Karbak
Advocate for the Respondent : P P of AP,
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
ORDER
Date : 29.01.2026 Heard Mr. Pritam Taffo, learned counsel for the petitioner. Also heard Mr. Token Ete, learned Addl. Public Prosecutor, Arunachal Pradesh.
2. By filing this criminal petition, the petitioner has challenged the impugned order dated 07.10.2025, passed by the learned Special Judge(NDPS), Yupia, rejecting the bail application filed by the petitioner for release of the accused on default bail in connection with Banderdewa PS Case No. 56/2025 under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
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3. The fact leading to the filing of this criminal petition is that the accused, namely, Shri Jiten Biswas, was arrested on 29.07.2025 in connection with Banderdewa PS Case No. 56/2025 under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985
4. On expiry of the statutory period of 60 days; a bail application was filed before the Court of Special Judge, NDPS, Yupia, on 07.10.2025, praying for for release of the accused on default bail as the police has failed to file the charge sheet into the case within the stipulated time. The bail application was rejected, holding that though the present case has been registered under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985; however, an offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is attracted against the accused, therefore, the extended period applicable to commercial quantity, would govern the case.
5. Being aggrieved, the petitioner filed bail application before this Court on 29.10.2025. However, this Court observed that the petitioner was required to challenge the bail rejection order, if aggrieved. Consequently, the bail application was withdrawn on 18.11.2025, with liberty to file appropriate application, afresh, which was granted by the Court.
6. Subsequently, on completion of the investigation, the police filed charge- sheet into the case on 04.11.2025 under Section 21(b)/27(a)/ 29(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985. However, the learned Special Judge(NDPS), Yupia, on 19.11.2025, has taken cognizance of the case against the accused under Section 21(c)/27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Thereafter, the petitioner has now filed the present petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, contending that the case was registered against the accused for the Page No.# 3/7 offence under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, on expiry of the statutory period when the police failed to file the charge-sheet into the case, the bail application was moved for release of the accused on default bail; the statutory period applicable to Section 21(b) had expired when the application for default bail was made, and that on expiry of the statutory period of 60 days, right to default bail having accrued to the accused, could not be defeated by subsequent filing of the charge-sheet or cognizance of the offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
7. The learned counsel for the petitioner further submits that the learned Special Judge(NDPS), Yupia, wrongly held at the stage of bail that the offence does not come under Section 21(b) and that the Section 21(c) is of commercial quantity and hence, the statutory period, applied would be 180 days, as the charge-sheet has also been filed for offence under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
8. The learned counsel further submits that as the police failed to file the charge-sheet on time, the accused therefore is entitled to be released on default bail and subsequent filing of the charge-sheet and alteration of the offence, would not disentitle the accused for release on default bail which had already accrued earlier before filing of the charge-sheet and alteration of the offences.
9. In support of his submissions, the learned counsel for the petitioner has relied on the decision rendered by the Hon'ble Supreme Court in the case of M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485. Paragraph No. 25.1. of the judgment being Page No.# 4/7 relevant, is extracted hereinbelow:
"25.1. Once the accused files an application for bail under the proviso to Section 167(2), he is deemed to have "availed of" or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation. Thus, if the accused applies for bail under Section 167(2) Code of Criminal Procedure, 1973 read with Section 36-A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigating agency."
10. The learned Addl. Public Prosecutor, Arunachal Pradesh, fairly concedes the submission of the learned counsel for the petitioner, and based on record, submits that since the present case was initially registered under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the petitioner filed the petition for release of the accused on expiry of the statutory period of 60 days, and the police failed to file the charge-sheet even after the expiry of the statutory period; the accused had accrued an indefeasible right to be considered for his release on default bail, and the charge-sheet was subsequently filed after the bail application was filed.
11. The learned Addl. Public Prosecutor, Arunachal Pradesh, further submits that as per the record, the learned Special Judge(NDPS), Yupia, has altered the section from 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, to 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in his bail order. In this regard, he submits that the offence registered against the accused cannot be altered at the stage of consideration of bail. In this regard, he has relied on the decision of the Hon'ble Supreme Court rendered in the case of State of Gujarat v. Girish Radhakrishnan Varde , reported in (2014) 3 SCC 659. Paragraph 14 of the judgment, reads as under:
Page No.# 5/7 "14. But if a case is registered by the police based on the FIR registered at the police station under Section 154 CrPC and not by way of a complaint under Section 190(1)(a) CrPC before the Magistrate, obviously, the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the charge-sheet unless of course a complaint before the Magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the charge-sheet, the matter goes to the Magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the Magistrate cannot exclude or include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police."
12. The law relating to default bail under Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023[Section 167(2) of the Code of Criminal Procedure, 1973], is well settled. Once the statutory period for completion of investigation expires and the accused applies for bail, an indefeasible right accrues in favour of the accused.
13. In the instant case, it is not disputed that the FIR was registered under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985; the charge-sheet was filed under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985; and the petitioner had applied for default bail after expiry of the statutory period applicable to Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985; and on the said date, when the default bail application was filed; the charge-sheet had not been filed.
14. The rejection of the petitioner's prayer for default bail by the learned Special Judge(NDPS), Yupia, on the ground that an offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, was made-out; cannot be sustained, particularly, when the FIR was registered and the charge-sheet itself was later filed under Section 21(b) of the Narcotic Page No.# 6/7 Drugs and Psychotropic Substances Act, 1985.
15. The subsequent alteration of the offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, during taking cognizance of the offence, cannot retrospectively extinguished the indefeasible right which had already accrued in favour of the accused.
16. In light of the above, the submissions made by the learned Addl. Public Prosecutor, Arunachal Pradesh, and the settled position of law and the law laid down by the Hon'ble Supreme Court in the above-referred cases; this Court is of the considered opinion that the petitioner has been able-to make out his case.
17. Accordingly, the impugned order dated 07.10.2025 passed by the learned Special Judge(NDPS), Yupia, rejecting the petitioner's prayer for default bail, is set aside.
18. The accused, namely, Shri Jiten Biswas is hereby directed to be released on default bail in connection with Banderdewa PS Case No. 56/2025 under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, on furnishing a bail bond of Rs. 50,000/-(Rupees fifty thousand) with one surety of like amount to the satisfaction of the learned Special Judge(NDPS), Yupia, subject to the following conditions:-
(i). He shall appear before the Trial Court on each and every date of hearing unless exempted;
(ii). He shall not, directly or indirectly, make any inducement, threat, or promise to the victim, or, to any person acquainted with the facts of Page No.# 7/7 the case;
(iii). He shall not indulge in any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, or, in any other criminal activity;
(iv). He shall not leave the jurisdiction of the trial Court without prior permission; and
(v). Any violation of the above conditions, shall entail cancellation of bail.
19. The criminal petition, accordingly, stands allowed and disposed of in terms of the above.
JUDGE Comparing Assistant