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2006 DIGILAW 656 (GAU)

Thangnam Khongsai v. Union of India

2006-07-21

I.A.ANSARI

body2006
ORDER I.A. Ansari, J. 1. This is an application made, under Section 439 Cr.P.C., seeking bail for the accused, namely, Shri Thangnam Khongsai, in connection with Customs Case No. 7/CL/NARC/AS/GAU/05-06, under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Perused the above application and materials on record. Perused also the relevant case diary. 3. Heard Mr. Ml Sharma, learned Counsel for the accused, and Mr. D.C. Chakravorty, learned Central Government counsel. 4. Before I deal with the present application, it is necessary to take note of certain facts, which are not in dispute. The accused above named was arrested, on 11.12.2005 for an offence allegedly committed by him under Section 20(b)(ii)(c)of Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act'). The accused made an application for bail in the Court of Sessions Judge, Kamrup, Guwahati, on 13.6.2006. This prayer was rejected, on 22.6.2002, by the learned Sessions Judge, Kamrup, on the ground that charge sheet already stood submitted against the accused in the said case. Feeling aggrieved by the rejection of the prayer for bail of the accused, the present petition under Section 439 Cr.P.C. seeking bail has, now, been made to this Court. 5. The short question, which has been raised in the present case, is this: In the facts and circumstances of the case, as indicated hereinabove, whether the accused above-named can be said to have had an indefeasible right to be allowed to go on bail under the proviso to Sub-section (2) of Section 167 Cr.P.C, when the bail application was finally heard and disposed of by the learned Sessions Judge ? 6. In the case of Uday Mohanlal Acharya v. State of Maharashtra, reported in 2001 CriLJ 1832, having considered a number of authorities on the question as to when an accused can be said to have acquired an indefeasible right to be enlarged on bail in terms of the proviso to Sub-section (2) of Section 167, the majority, speaking through Patnaik, J (as his Lordship then was), laid down as follows: 1. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. 2. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. 2. Under the proviso to aforesaid Sub-section (2) of Section 167, the Magistrate may authorize detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days as the case may be, an indefeasible right accures in favour of the accused for being released on bail on account of default by the Investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, of he is prepared to and furnish the bail, as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized, and, therefore, if during that period the investigating is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. 6. The expression 'if not already availed of used by this Court in Sanjay Dutt's case (AIR 1994 SCW 3857) (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. 7. From a careful reading of what have been observed in Uday Mohanlal Acharya (supra), it is clear that an accused acquired indefeasible right to be enlarged on bail if no charge-sheet is submitted within the period fixed for submission of charge-sheet from the date of the arrest of the accused concerned. Hence, when an accused, having acquired this indefeasible right, makes an application for bail, it is the duty of the Court/Magistrate concerned to allow the accused to go on bail if the accused is willing to offer surety. Necessary, therefore, it is that when an accused, on having acquired such a right, makes an application for bail, the court shall expeditiously dispose of the same or else, such a right would be put to naught if, taking advantage of the delay in disposal of such a bail application, the prosecution agency submits the charge-sheets and frustrate the bail application. 8. There is no dispute before me that when an accused is arrested for having allegedly committed an offence under Section 20(b)(ii)(c) of the NDPS Act, the accused becomes entitled to be released on bail if the charge-sheet is not submitted against him within a period of 180 days from the date of his arrest and if he is, in such a case, willing to go on bail and offers to be released on surety. 9. In the present case, since the accused was arrested on 11.12.2005, the charge-sheet ought to have been submitted within 180 days therefrom, i.e., on or before 10.6.2006. 9. In the present case, since the accused was arrested on 11.12.2005, the charge-sheet ought to have been submitted within 180 days therefrom, i.e., on or before 10.6.2006. Thus, when the accused applied for bail on 13.6.2006, he had already acquired, under Sub-section (2) of Section 167Cr.P.C. an indefeasible right to go on bail since he was willing to offer surety therefor. This prayer for bail was, however, rejected, on 22.6.2006, on the ground that the charge-sheet had been, in the meanwhile, submitted on 20.6.2006. Since the accused had already applied for bail on 13.6.2006, the mere fact that his bail petition had remained pending without the same having been disposed of and, in the meanwhile, the investigating agency had submitted charge-sheet, could not have been treated to have extinguished the right, which the accused had already acquired to go on bail on the failure of the investigating agency to submit the charge-sheet within the period of 180 days, as indicated hereinabove. It may be emphasized that, when an accused acquires indefeasible right, under the proviso to Sub-section (2) of Section 167 Cr.P.C., to be enlarged on bail, such a right can be defeated only if the accused, on becoming so entitled, fails to offer surety for being enlarged on bail and before such right is exercised by the accused, the prosecution agency submits charge-sheet against him. The learned Sessions Judge, therefore, committed serious error in law in not allowing the accused above-named to go on bail. 10. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the accused above-named be allowed to go on bail of Rs. 25,000 with two local sureties, each of the like amount, subject to the satisfaction of the learned Sessions Judge, Kamrup. This direction for bail is further subject to the condition that the accused above-named shall not leave the territorial jurisdiction of the Sessions Judge, Kamrup, without obtaining his leave and shall appear in the learned court below as and when so required. 11. With the above observations and directions, this bail application shall stand disposed of.