Judgment 1. The respondent is arrayed as accused No.1 (hereinafter referred to as ‘accused No.1) in Special C.C.No.165/2009, on the file of XXXIII Addl. City Civil & Sessions Court and Special Court for NDPS Cases at Bangalore, pending trial for offences punishable under sections 21, 23, 27(A), 28 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short, the Act’]. 2. As per the complaint filed and annexed documents by Inspector of Customs, HQRS, Prevention Unit, Bangalore (for short complaint) accused No.1 and 2 were caught red handed by the Inspector of Customs on 20.02.2009 when they were booking four courier parcels to Netherlands, Spain and United Kingdom, in which heroin had been concealed. The gist of the complaint as stated in the impugned order is as follows:- “On 20.02.2009 G. Chetan, Inspector of Customs, HPU, Bangalore on the gathered intelligence goes to M/s Blue Dart Express, 6/1, 60 feet road, 6th Block, 5th Cross, Koramangala, Bangalore – 95 and therein accused No.1-Betrand Tochukwu and accused no.2-Ms. Daphira Wallang have booked four shipments to Netherlands, Spain and United Kingdom and got prepared four airway bills with four cash memos dated 20.02.2009 with one Kashi working as operation executive of that Blue Dart Express and when these four shipments were retrieved and checked they were containing ladies night wares with buttons and shin guards and in these buttons and sin guards ivory coloured powder and brown coloured powder were concealed and on test they responded positive for the heroin, i.e, Diacety Morphine, totally there it was recovered 694 grams of ivory coloured powder + 1024 grams of ivory coloured powder + 362 grams of brown coloured powder + 485 grams of brown coloured powder, as they all answered positive for heroin, i.e., Diacetyl Morphine, total herein that was recovered was 2565 grams and in this regard OR.No.23/08-09 was registered against accused Nos.1 and 2 for the offence U/Sec.8 (c) read with Sec.21, 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 15.06.2009, accused No.1 made a bail application under section 37(b) of the Act. On 16.06.2009, the complainant filed the report of Assistant Chemical Examiner from Central Revenue Control Laboratory, New Delhi, indicating that in the seized contraband (hereon) total weight of narcotic substance is 643.6 grams. On 15.06.2009, accused No.1 made a bail application under section 37(b) of the Act. On 16.06.2009, the complainant filed the report of Assistant Chemical Examiner from Central Revenue Control Laboratory, New Delhi, indicating that in the seized contraband (hereon) total weight of narcotic substance is 643.6 grams. The complainant opposed bail application by filing objections on 25.06.2009. On 20.08.2009, complaint (the final report of investigation) and necessary documents were filed. On 17.09.2009, accused No.1 filed a memo before the trial Court, reading as hereunder:- “The Accused No.1 humbly submits that, he having availed of the benefit and the indefeasible right accrued under section 167(2) of Cr.P.C r/w 439 Cr.P.C., the accused no.1 hereby confines his prayer and arguments thereof only on the mandatory bail ground and not on the merits of the case, in the interest of justice.” 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 cancellation of bail. 4. I have heard Sri Urval N. Ramanand, learned senior counsel for complainant and Sri Amar Correa, learned counsel for accused No.1. 5. On consideration of the impugned order, I find that the learned Special Judge has granted bail to accused No.1 under section 167(2) Cr.P.C. The learned Special Judge has confined consideration of bail in terms of the memo as aforestated. 6. Sri Urval N. Ramanand, learned senior counsel appearing for complainant has made following submissions:- I. The offences alleged against accused No.1 and offences for which complaint was initiated against accused No.1 are punishable with minimum sentence of imprisonment for ten years and 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.1. II. Accused No.1 did not exercise so-called indefeasible right at any point of time, much less bail application filed by accused No.1 on 15.06.2009 indicates that accused No.1 was exercising indefeasible right under section 167(2) Cr.P.C. III. The learned Special Judge should not have accepted the memo for consideration of bail application under section 167(2) Cr.P.C., more particularly when complaint on completion of investigation had lodged complaint and all the relevant documents on 19.08.2009 within the period prescribed under section 36-A(4) of the Act. IV. The learned Special Judge should not have accepted the memo for consideration of bail application under section 167(2) Cr.P.C., more particularly when complaint on completion of investigation had lodged complaint and all the relevant documents on 19.08.2009 within the period prescribed under section 36-A(4) of the Act. IV. Thelearned Special Judge should not have considered restrictive provisions contained under section 37(1)(b) of the Act. 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 accused No.1 is not guilty of such offences under sections 21, 23, 27(A), 28 and 29 of the Act and that he is not likely to commit such offences when on bail. 7. The learned senior counsel for the complainant relied on the following decisions:- I. AIR 1990 SC 71 (in the case of Rajnikant Jivanlal Patel and another v. Intelligence Officer, Narcotic Control Bureau, New Delhi). II. (2008) 1 SCC (Cri) 36 (in the case of Dinesh Dalmia v. CBI). 8. Sri. Amar Correa, learned counsel for accused No.1 has made following submissions:- I. The indefeasible right accrued to accused No.1 was exercised on time by filing bail application on 15.06.2009 by which time it was not made known by the complainant as to whether quantity of contraband seized from accused No.1 would fall within the definition of small quantity or commercial quantity as stated in item No.56 of table to the Act. II. Accused No.1 had made necessary averments in the bail application III. Accused No.1 did not commit any error by filing a memo, confining to exercise his indefeasible right under section 167(2) Cr.P.C. The trial Court has not committed any error in deciding the bail application under section 167(2) Cr.P.C. IV. Accused No2, against who similar allegations are made was enlarged on bail under section 167 (2) Cr.P.C. The complainant was unsuccessful in seeking cancellation of bail before this Court in Criminal Petition No.2411/2009 dated 03.08.2009. V. In the matter of consideration of bail petition under Chapter XIII Cr.P.C., or 167(2) Cr.P.C., the Court 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 decisions: I. 1992 AIR SCW 2621 (in the case of Aslam Babalal Desai v. State of Maharashtra). II. 9. In support of above contentions, learned counsel for accused No.1 has relied on the following decisions: I. 1992 AIR SCW 2621 (in the case of Aslam Babalal Desai v. State of Maharashtra). II. 1991 (1) SCC 705 (in the case of Narcotics Control Bureau v. Kishan Lal and others). III. (2008) 1 SCC (Cri) 36 (in the case of Dinesh Dalmia v. CBI). The learned counsel for accused No.1, relying on the above decisions would submit if accused No.1 were to abide by the conditions that may be imposed while granting bail that would be sufficient to meet the provisions of section 167(2) Cr.P.C. 10. It is not in dispute and it cannot be disputed that on 08.06.2009, 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 Central Revenue Control Laboratory, New Delhi submitted a report, which indicates presence of 643.63 grams of narcotic substance out of total quantity of 2.565 kilograms and this quantity would be commercial quantity in terms of item No.56 of table to the Act. In terms of section 36-A(4) of the Act, period of limitation for completion of investigation and initiation of complaint/chargesheet is 180 days from the date of arrest of accused. 11. In the circumstances, the question for determination is:- Whether the learned Special Judge was justified in considering the bail application filed by accused No.1 on 15.06.2009 as one filed under section 167(2) Cr.P.C., in view of memo filed by the learned counsel for accused No.1 on 17.09.2009 after the complainant on completion of investigation initiated complaint on 19.08.2009? 12. It is needless to state that when accused invokes the provisions of section 167(2) Cr.P.C., the Court would grant bail as it lacks power to extend remand of accused if final report under section 173(5) Cr.P.C., is not filed within time specified therein. In a way right to seek bail under section 167 (2) Cr.P.C., accrues to accused No.1 due to lapse on the part of investigating officer. In the case on hand, we are governed by the provisions of Section 36-A of the Act reading as hereunder:- “32[36-A. Offences triable by Special Courts. In a way right to seek bail under section 167 (2) Cr.P.C., accrues to accused No.1 due to lapse on the part of investigating officer. In the case on hand, we are governed by the provisions of Section 36-A of the Act reading as hereunder:- “32[36-A. Offences triable by Special Courts. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 – (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate. Provided that in cases which are triable by the special Court where such Magistrate considers – (i) when such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorized by him; that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section; (d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an offence 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. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the powers under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under Section 36. (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 thereof to “ninety days”, when 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. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.]” Thus, we find proviso to sub section (4), section to 36-A vests discretionary power with the Special Judge to extend the period specified in sub section (4) up to one year on the report of Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of accused beyond the said period of one hundred and eighty days. We do not find such enabling provision under section 167(2) Cr.P.C. In the case on hand, reading of complaint and documents annexed to complaint would establish a prima facie case against accused No.1 for offences punishable under sections 21, 23, 27(A), 28 and 29 of the Act and narcotic substance seized from possession of accused no.1 falls within the meaning of commercial quantity and period of limitation for completing investigation and initiation of complaint was 180 days from the date of arrest of accused No.1. In the circumstances, bail application filed by accused No.1 on 15.06.2009 should not have been considered under section 167 (2) Cr.P.C. Even otherwise, in bail application filed on 15.06.2009, accused No.1 has not stated that nature of allegations against him would not attract offences punishable under sections 21, 23, 27A, 28 & 29 of the Act or that offences do not involve commercial quantity. Accused No.1 has not referred to provisions of section 36-A, which vests power with Special Judge to extend remand of accused beyond the specified period and governs period of limitation for initiating complaint filed for offences involving commercial quantity. On the other hand, in paragraph 14 of the bail application, accused No.1 has stated as hereunder:- “That the accused submits that he is ready and willing to abide by all conditions imposed by this Hon’ble Court and also undertakes to be present on every dates of hearing and also undertakes not to abscond or delay the process of justice.” That on 17.09.2009, accused No.1 filed a memo reading as hereunder:- “The Accused no.1 humbly submits that, he having availed of the benefit and the indefeasible right accrued under section 167(2) of Cr.P.C. r/w 439 Cr.P.C., the accused no.1 hereby confines his prayer and arguments thereof only on the mandatory bail ground and not on the merits of the case, in the interest of justice.” 13. In view of the memo filed by the learned counsel for accused No.1, the learned Special Judge considered the bail application under section 167(2) Cr.P.C., which in my considered opinion is erroneous approach. The learned Special Judge has not looked into the provisions of section 37-A of the Act, complaint and other documents to find out nature of offences alleged against accused No.1 for recording satisfaction of the Court as to whether there are grounds for believing that accused No.1 has not committed aforestated offences. The learned Special Judge has not looked into the provisions of section 37-A of the Act, complaint and other documents to find out nature of offences alleged against accused No.1 for recording satisfaction of the Court as to whether there are grounds for believing that accused No.1 has not committed aforestated offences. The consideration of bail application in a case of instant nature, primarily involves three aspects viz (1) liberty of accused, (2) interest of society and nation at large and (3) statutory restrictions contained in the Act. The learned Special Judge appears to have swayed away by memo filed by accused No.1 to hold that accused No.1 had indefeasible right to assert before the Court that bail application should be considered only on the ground, which he wishes to urge. As already stated on 15.06.2009, when bail application was made, the period of limitation in terms 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 submitted on 16.06.2009. Thus, as on 15.06.2009. It was not clear whether quantity of contraband seized from accused No.1 was small quantity or commercial quantity to consider offences alleged against accused No.1. 15. This submission cannot be accepted for more than one reason. The nature of offences has to be determined on consideration of documents filed on completion of investigation. In a bail application filed under the provisions of the Act, consideration of bail application is governed by the provisions of the Act. The non-obstante clause occurring in the commencement of section 36-A gives a clear indication that provisions of section 36-A have over riding effect on the provisions of section 167 of code of criminal procedure, 1973. Thus, the finding of learned Special Judge that indefeasible right had accrued to accused No.1 on 15.06.2009 for failure of the complainant to produce Assistant Chemical Examiner’s report to indicate actual weight of narcotic substance out of total weight of seized contraband and such indefeasible right which had accrued to accused No.1 was not defeated by the Assistant Chemical Examiner’s report filed on 16.06.2009 and the complaint filed on 20.08.2009, is erroneous. 16. 16. In a decision reported in AIR 1990 SC 71 (in the case of Rajnikant Jivanlal Patel and another v. Intelligence Officer, Narcotic Control Bureau, New Delhi), the Supreme Court has held:- “12. An order for release on bail under proviso (a) to S.167(2)may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under S.167(2) proviso (a) thereto is absolute. It is a legislative command and not Court’s discretion. If the 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 on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. 13. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to S.167(2) could be cancelled.” 17. In view of what has been stated in the above decision, it is clear even under section 167(2) Cr.P.C., if accused is released on bail for default of the prosecution to file charge sheet, within the prescribed period, if after charge sheet is filed, there are sufficient grounds to cancel bail, bail granted to accused could be cancelled. Ultimately, the documents filed under section 173(5) Cr.P.C., would be relevant to decide nature of offences alleged against accused and period of limitation for filing final report under section 173(5) Cr.P.C. 18. In the case on hand, on 19.08.2009, on completion of investigation, complaint was initiated by the complainant and much before the initiation of complaint, complainant had submitted Assistant Chemical Examiner’s report on 16.06.2009, indicating weight of narcotic substance as 643.63 grams, which is commercial quantity as mentioned at item No.56 of table to the Act. In the circumstances, there was prima facie material before the learned Special Judge to hold that acts alleged against accused would attract offences punishable under sections 21, 23, 27A, 28 & 29 of the Act. In the circumstances, there was prima facie material before the learned Special Judge to hold that acts alleged against accused would attract offences punishable under sections 21, 23, 27A, 28 & 29 of the Act. The minimum sentence provided for such offences is imprisonment for ten years and maximum punishment is twenty years. In terms of section 36-A(4) of the Act, period of limitation for completion of investigation and initiation of complaint is 180 days. Therefore, order of the learned Special Judge granting bail to accused No.1 by holding that accused No.1 had acquired indefeasible right on 15.06.2009 as the report of Assistant Chemical Examiner had not been filed on 15.06.2009 and filing of the Assistant Chemical Examiner’s report on 16.06.2009 did not take away the indefeasible right accrued to accused no.1 on 15.06.2009, is erroneous. 19. The learned counsel for accused No.1 has submitted while considering bail application either under section 439 Cr.P.C., or section 167(2) Cr.P.C., the Court should not go by technicalities to eclipse the liberty of accused. 20. In my considered opinion, bail granted to accused No.1 under section 167(2) Cr.P.C., is erroneous. The learned Special Judge has ignored the provisions of section 36-A and section 37 of the Act. In the discussion made supra, I have held no indefeasible right had accrued to accused no.1 on 15.06.2009 or subsequently. The investigation was completed and the complaint was initiated within the time specified under section 36-A of the Act. Therefore, submission of learned counsel for accused No.1 cannot be accepted. 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 exercised his indefeasible right under section 167(2) Cr.P.C. 22. In the discussion made supra, I have held that accused No.1 had not acquired indefeasible right under section 36-A of the Act. 23. The learned counsel for accused No.1 would submit if accused No.1 does not exercise his right under section 167(2) Cr.P.C., it is the duty of Court to uphold indefeasible right available under section 167(2) Cr.P.C. and grant relief to the accused. In support of the same, the learned counsel has relied on a judgment reported in 2001 SCC (Cri) 760 (in the case of Uday Mohanlal Acharya v. State of Maharashtra), relevant paragraph of the judgment reads thus: “6. In support of the same, the learned counsel has relied on a judgment reported in 2001 SCC (Cri) 760 (in the case of Uday Mohanlal Acharya v. State of Maharashtra), relevant paragraph of the judgment reads thus: “6. The expression “if not already availed of’ used by this Court in Sanjay Dutt case3 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 para (a) of the proviso to sub-section (2) of Section 167 if the accused files and 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. 24. In the discussion made supra, I have held that on 15.06.2009, when bail application was filed by accused No.1, no indefeasible right had accrued to him in view of serious allegations made against him and the nature of offences alleged against him. Therefore, what has been held in the decision cited supra is not applicable to facts of the case on hand. 25. The learned counsel for accused No.1 referring to the order made by this Court in Criminal Petition No.2411/2009 availed benefit available under section 167(2) Cr.P.C., and the complainant was before this Court for cancellation of bail in criminal petition No.2411/2009. This Court dismissed criminal petition No.2411/2009. This Court in Criminal Petition No.2411/2009 dated 03.08.2009 has referred to the importance of Assistant Chemical Examiner’s report. This Court has held if on receipt of report it is found that quantity of contraband seized was of similar quantity, punishment would be for a period of six months, in which event complaint should be initiated within 60 days. This Court has held if contraband seized was of commercial quantity, minimum punishment provided is imprisonment for ten years and maximum punishment provided is imprisonment for twenty years and in such an event, complaint has to be initiated within a period of 180 days. This Court has held if contraband seized was of commercial quantity, minimum punishment provided is imprisonment for ten years and maximum punishment provided is imprisonment for twenty years and in such an event, complaint has to be initiated within a period of 180 days. In criminal petition No.2411/2009, this Court has accepted the submission of learned counsel for accused No.2 that even on the date of grant of bail by the trial Court, nothing was produced before the learned trial Judge to show that quantity of contraband seized was commercial quantity. 26. In the case on hand, as already stated, Assistant Chemical Examiner’s report was filed on 16.06.2009 to indicate that weight of narcotic substance found in the contraband seized was commercial quantity as mentioned in item No.56 of table to the Act. Therefore, offences under sections 21, 23, 27A, 28 & 29 of the Act are squarely attracted. In the circumstances, period of limitation for initiation of complaint was 180 days. 27. The learned Special Judge while dealing with the bail application should have considered the complaint and Assistant Chemical Examiner’s report to decide nature of offences and period of limitation. The learned Special Judge ignoring the relevant provisions of the Act and the documents by merely relying on the assertions made in memo filed on 17.09.2009 has accepted the so called indefeasible right accrued to accused no.1 to release him on bail. The learned Special judge has held that report filed on 16.06.2009 and complaint filed on 19.08.2009 did not take away right accrued to accused No.1 on 15.06.2009. The approach of learned Special Judge is erroneous. Therefore, bail granted to accused No.1 cannot be sustained. 28. In the result, I pass the following:- ORDER The criminal petition is accepted. The bail granted to respondent/accused No.1-Betrand Tochukwu Ikwuka in Special C.C.No.165/2009, on the file of XXXIII Addl. City Civil & Sessions Court and Special Court for NDPS Cases at Bangalore is cancelled.