NDPS Act | Orissa High Court Grants Bail To Accused Who Was Not Heard Before Giving Extension To Submit Chargesheet

A Single Judge Bench of Justice Bibhu Prasad Routray held,

"It is the settled law that right guaranteed under Section 167(2) to the accused is indefeasible. This Court, in the case of Lambodar Bag (supra) after taking into consideration the principles decided in the case of Hitendra Vishnu Thakur v. State of Maharashtra, reported in A.I.R. 1994 SC 2623 and various other decisions, have answered on five points relating to release of an accused in terms of Section 36-A(4) of the N.D.P.S. Act read with Section 167(2) of the Cr.P.C. The answer is in affirmative in favour of the accused for his enlargement on bail for non-completion of investigation within the prescribed period of 180 days on different contingencies relating to extension of such period."

Factual Background:

The petitioner was arrested on the allegation of transporting and possessing 73 KGs 800 Grams of contraband ganja. He was taken to custody on 07.07.2020 for commission of offences under Section 20(b)(ii)(C) of the NDPS Act. He was remanded to custody on 08.07.2020 by order of the Sessions Judge-cum-Special Judge, Malkangiri and since then he was in custody.

The investigation continued and 180 days completed on 03.01.2021. On 04.01.2021, a petition was filed by prosecution praying for extension of a further period of 180 days for completion of investigation and submission of chargesheet. On the same day, the Sessions Judge-cum- Special Judge, Malkangiri granted extension of 60 days to the prosecution for completion of investigation without giving any opportunity of hearing to the accused-petitioner.

Again on 01.03.2021, the prosecution filed another petition praying for further extension of 60 days to file chargesheet. The defence counsel objected to such prayer. However, the learned Sessions Judge-cum-Special Judge granted extension of 15 days to the prosecution to file the chargesheet. On 15.03.2021, chargesheet was filed by the prosecution against the petitioner and three other accused persons for the offences stated above and the cognizance was taken for the offences on the same day by the learned Sessions Judge- cum-Special Judge.

The petitioner has filed this petition and has prayed to releasing him on default bail in terms of Section 36-A(4) of the NDPS Act read with Section 167(2) of the Cr.P.C.

Contentions/Submissions:

Mr. J.K. Panda, counsel for the petitioner, argued that remanding the accused to custody on 04.01.2021 and again on 01.03.2021 is against the principles of law enshrined under Section 167(2) of the Cr.P.C. He relied on Lambodar Bag v. State of Orissa, (2018) 71 OCR-31, to contend that granting extension of time for completion of investigation beyond 180 days without granting any opportunity of hearing to the petitioner and even without intimating him of his right for release on bail upon completion of 180 days is gross violation of law.

Thus, he stressed that the orders dated 04.01.2021 & 01.03.2021 of the Sessions Judge-cum-Special Judge and subsequent remand of the petitioner into custody is illegal and liable to be set aside. It was thus prayed that the petitioner should be released on default bail as a matter of right guaranteed under the provisions contained in Section 167(2) of the Cr.P.C. read with Section 36-A(4) of the NDPS Act.

Court's Observation:

The Court held that the right guaranteed to the accused under Section 167(2), Cr.P.C. is indefeasible. It reiterated the law laid down in Lambodar Bag (supra) after taking into consideration the principles decided in Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623. In the said case, the Court had answered on five points relating to release of an accused in terms of Section 36-A(4) of the NDPS Act read with Section 167(2) of the Cr.P.C. The answer was in affirmative in favour of the accused for his enlargement on bail for non-completion of investigation within the prescribed period of 180 days on different contingencies relating to extension of such period.

The Court noted the clarification made in Lambodar Bag (supra) that even if the accused has not applied for his release on default bail, still his entitlement for bail on account of non-submission of prosecution report would not be affected. Accordingly, it held,

"Applying those principles as decided by this Court in the case of Lambodar Bag to the present facts of the case as narrated in the preceding paragraphs, it is felt that in the present case, the indefeasible right of the Petitioner for his release on default bail has been violated. It is evinced from the orders dated 04.01.2021 & 01.03.2021 that the accused-petitioner has not been given any opportunity of hearing to lead his legitimate objections nor he has been informed his right of default bail before granting extension of 60 days and 15 days respectively to the prosecution."

Consequently, the orders dated 04.01.2021 and 01.03.2021 of the learned Sessions Judge-cum-Special Judge, Malkangiri to the extent granting extension of remand to the prosecution for completion of investigation were set aside.

Notably, earlier this year while dealing with a NDPS matter, the High Court had held that extension beyond statutory period in submitting chargesheet cannot be granted without giving due hearing to accused.

Case Title: Kartik Nag v. State of Odisha

Case No.: CRLMC No. 37 of 2022

Judgment Dated: 20 April 2022

Coram: Justice B.P. Routray

Counsel for the Petitioner: Mr. J.K. Panda, Advocate

Counsel for the Respondent: Mr. S.N. Nanda, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 51

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