Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 562 (ORI)

Lambodar Bag v. State of Orissa

2018-05-16

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - The petitioner Lambodar Bag in BLAPL No.7337 of 2017 and his wife Jayanti Bag in BLAPL No.2717 of 2017 have filed these petitions under section 439 of Cr.P.C. seeking for bail in connection with 2(a) C.C. Case No. 02 of 2017 pending in the Court of learned Addl. Sessions Judge -cum- Special Judge, Patnagarh, Bolangir (hereafter ‘trial Judge’) in which prosecution report has been submitted against them under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) for illegal possession and transportation of 345 kgs. 40 grams of ganja. 2. The prosecution case, as per the prosecution report dated 26.09.2017 submitted by the Sub-Inspector of Excise, Patnagarh charge is that the petitioners were found to be in illegal possession and transportation of 22 numbers of jerry bags containing 345 kgs. 40 grams of ganja on 24.01.2017 at 9.30 a.m. near Mahadeb pond at Nehenabandh under Patnagarh police station in the district of Bolangir. They were arrested at the spot and forwarded to Court of learned trial Judge on the very day along with seized articles. 3. The bail application of petitioner Jayanti Bag was rejected by the learned trial Judge on 18.03.2017. The petitioner Lambodhar Bag filed an application under section 439 Cr.P.C. seeking for bail directly before this Court in BLAPL No.3976 of 2016 without moving first the learned trial Judge annexing the rejection order of the petitioner Jayanti Bag. The said petition was disposed of on 21.07.2017 as withdrawn. 4. Since within the stipulated period of one hundred and eighty days as provided under sub-section (4) of section 36-A of the N.D.P.S. Act, investigation could not be completed, on 22.07.2017 on a petition filed by the learned Addl. Special Public Prosecutor and after hearing the learned Addl. Special Public Prosecutor as well as the Investigating Officer, period of investigation was extended for another sixty days by the learned trial Judge. The extended period for completion of investigation as was granted by the learned trial Judge as per order dated 22.07.2017 expired on 20.09.2017. The final prosecution report dated 26.09.2017 was received by the learned trial Judge on the very day but cognizance of offence under section 20(b)(ii)(C) of the N.D.P.S. Act was taken on 07.10.2017. The case against the co-accused Kumen Karunananda who as an absconder as per the final prosecution report was splitted up on 01.12.2017. The final prosecution report dated 26.09.2017 was received by the learned trial Judge on the very day but cognizance of offence under section 20(b)(ii)(C) of the N.D.P.S. Act was taken on 07.10.2017. The case against the co-accused Kumen Karunananda who as an absconder as per the final prosecution report was splitted up on 01.12.2017. 5. The petitioner Lambodhar Bag filed an application for bail before the learned trial Judge for his release on health ground which was rejected on 09.08.2017. He has filed BLAPL No. 7337 of 2017 against such rejection order. Similarly the petitioner Jayanti Bag has filed BLAPL No. 2717 of 2017 against the rejection order dated 18.03.2017. 6. Dr. Niranjan Swain, learned counsel for the petitioners pleading for bail of the petitioners contended that while extending the period of investigation for another sixty days as per the order dated 22.07.2017, neither the petitioners nor their counsels were noticed nor they were heard and even though after the extension period of sixty days, investigation could not be completed, no further petition as per the proviso to sub-section (4) of section 36–A of the N.D.P.S. Act was filed but all the same, the learned trial Judge remanded the petitioners to judicial custody. He further contended that detention of the petitioners beyond the extended period for completion of investigation without the challan being filed is illegal and unauthorized. He further contended that the petitioners were not informed about their right of being released on bail in view of the proviso to sub-section (2) of section 167 of Cr.P.C. and therefore, the petitioners are entitled to be released on bail. Mr. Arupananda Das, learned Addl. Govt. Advocate appearing for the State on the other hand submitted that the petitioners should have first approached the learned trial Judge taking the grounds on which they are now seeking for bail. He submitted that the bail application which was filed by petitioner Lambodar Bag in BLAPL No.7337 of 2017 was against the order dated 09.08.2017 of the learned trial Judge in which bail was sought for on the health ground only. Similarly the petitioner Jayanti Bag has approached this Court in BLAPL No.2717 of 2017 against the rejection order dated 18.03.2017 of the learned trial Judge which was much prior to the order passed by the learned trial Judge extending the period of investigation for sixty days. Similarly the petitioner Jayanti Bag has approached this Court in BLAPL No.2717 of 2017 against the rejection order dated 18.03.2017 of the learned trial Judge which was much prior to the order passed by the learned trial Judge extending the period of investigation for sixty days. It is further contended that the petitioners are seeking for bail on the ground of default of the investigating agency in not submitting the final prosecution report even within the extended period of sixty days in completing the investigation as granted by the learned trial Judge on 22.07.2017 and no petition having been filed before the trial Judge during the default period, since on submission of final prosecution report, cognizance of offence has been taken in the meantime, such grounds are not available with the petitioners now for consideration of the bail applications before this Court. 7. The questions that now crop up for consideration are as follows:- (i) Whether an extension for completing the investigation beyond the prescribed period of one hundred and eighty days can be granted under section 36-A(4) of N.D.P.S. Act on the report of the Public Prosecutor without any notice to the accused to have their say regarding the prayer for grant of extension? (ii) Whether on a petition filed by the Public Prosecutor seeking for extension of time to complete investigation which does not reflect his independent application of mind, the Special Court can grant extension? (iii) Whether the detention of the accused beyond the extended period for completion of investigation without the challan being filed is illegal and unauthorized when no further petition is filed by the Public Prosecutor for extending the period of investigation? (iv) Whether the Special Court is duty bound to inform the accused about their right of being released on bail in view of the proviso to sub-section (2) of section 167 of Cr.P.C.? (v) Whether petition for bail having not been filed before the trial Judge during the default period, the right of being released on bail stands extinguished? 8. Sub-section (4) of section 36-A of the N.D.P.S. Act reads as follows:- “36-A (4). (v) Whether petition for bail having not been filed before the trial Judge during the default period, the right of being released on bail stands extinguished? 8. Sub-section (4) of section 36-A of the N.D.P.S. Act reads as follows:- “36-A (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 subsection (2) of section 167 of 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.” Right to liberty which is a fundamental right flows from Article 21 of the Constitution of India. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof as stipulated under Article 21 of the Constitution. Discussion on question no.(i) The petitioners Lambodar Bag and Jayanti Bag were produced before the learned trial Judge for the first time after their arrest on 24.01.2017 and they were remanded to judicial custody. The petitioners engaged their counsels who filed Vakalatnama on 30.01.2017. The bail application of petitioner Jayanti Bag was rejected by the learned trial Judge on 18.03.2017. On 22.07.2017 the case record was put up on the petition filed by the learned Addl. Special Public Prosecutor for extending the period of investigation from one hundred and eighty days to two months more on the grounds stated therein. The learned trial Judge after hearing the Addl. Special Public Prosecutor as well as the Investigating Officer, granted extension for another sixty days to complete investigation. The learned counsel for the petitioners submitted that parameteria provision like sub-section (4) of section 36-A of the N.D.P.S. Act is there in sub-section (4) of section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereafter ‘TADA’). Special Public Prosecutor as well as the Investigating Officer, granted extension for another sixty days to complete investigation. The learned counsel for the petitioners submitted that parameteria provision like sub-section (4) of section 36-A of the N.D.P.S. Act is there in sub-section (4) of section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereafter ‘TADA’). Sub-section (4) of section 20 of the TADA is extracted herein below:- “20.(4) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that,- a. the reference in sub-section (1) thereof to “Judicial Magistrate” shall be construed as a reference to Judicial Magistrate or Executive Magistrate or Special Executive Magistrate; b. the reference in sub-section (2) thereof to “fifteen days,” “ninety days” and “sixty days,” wherever they occur, shall be construed as references to “sixty days, “one hundred and eighty days and “one hundred and eighty days” respectively; and (bb)sub-section (2-A) thereof shall be deemed to have been omitted. (bbb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:- Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall 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.” He relied upon the case of Hitendra Vishnu Thakur -Vrs.- State of Maharashtra reported in A.I.R. 1994 Supreme Court 2623, wherein the Hon’ble Supreme Court has held that when a report is submitted by the Public Prosecutor to the Designated Court for grant of extension under Cl. (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is further held that it is true that neither Clause (b) nor (bb) of sub-section (4) of section 20 TADA specifically provide for the issuance of such a notice but it must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. It is further held that it is true that neither Clause (b) nor (bb) of sub-section (4) of section 20 TADA specifically provide for the issuance of such a notice but it must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. It is further held that this is a requirement of principles of natural justice and issuance of notice to the accused would accord with fair play in action, which the Courts have always encouraged and even insisted upon and there is no prohibition to the issuance of such a notice to the accused and no prejudice whatsoever can be caused by the issuance of such a notice to any party. It is further held that no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and before any extension is granted, the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension. In the case in hand, when the petition was filed by the learned Addl. Special Public Prosecutor on 22.07.2017 for extending the period of investigation, no notice was issued to the petitioners on such petition to have their say in the matter. Even the filing of the petition was not brought to the notice of the counsels representing the petitioners. Since while considering such a petition, principles of natural justice was not followed and the petitioners were not given opportunity to oppose the extension on any legitimate and legal grounds available to them and even the trial Judge has not brought filing of such a petition to the notice of the counsels representing the petitioners, in view of the ratio laid down in case of Hitendra Vishnu Thakur (supra), I am of the view that the learned trial Judge has committed illegality in granting extension for a further period of sixty days for completing investigation as per order dated 22.07.2017 which is against fair play in action and in my humble opinion, it has caused serious prejudice to the petitioners. Even though sub-section (4) of section 36-A of the N.D.P.S. Act does not specifically provide for issuance of notice to the accused on the report of the Public Prosecutor before granting extension but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice between the parties and since there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice. Moreover, report has to be filed by the Public Prosecutor in advance and not on the last day, so that on being noticed, the accused gets fair opportunity to have his say and oppose the extension sought for by the prosecution. Discussion on question no.(ii) As per the proviso to sub-section (4) of section 36-A of the N.D.P.S. Act, report of the Public Prosecutor must indicate the progress of the investigation and the specific reasons for the detention of the accused beyond the period of one hundred and eighty days. In case of Hitendra Vishnu Thakur (supra), it is held that for seeking extension of time under clause (bb) of subsection (4) of section 20 of TADA, the Public Prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The Public Prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it, that he has applied his mind and was satisfied with the progress of investigation and considered grant of further time to complete the investigation necessary. The request of an investigating officer for extension of time is no substitute for the report of the Public Prosecutor. The Public Prosecutor is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. The report of the Public Prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contain in clause (bb). Mere reproduction of the application or request of the investigating officer by the Public Prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction would not render his report as the one envisaged by clause (bb) and it would not be proper report to seek extension of time. Looking at the petition dated 22.07.2017 filed by the learned Addl. Special Public Prosecutor before the learned trial Judge, the reason for seeking extension of period of investigation for sixty days more is that the criminal antecedents of the accused persons have not been received and that the investigating officer has noticed the land owner and the motor cycle owner but they have not appeared before him as yet and for the aforesaid reasons, charge sheet could not be submitted on that day. The Addl. Public Prosecutor has not attached the request of the investigating officer along with his request or application. There is nothing in the petition which would show that the Addl. Public Prosecutor has filed such petition after an independent application of his mind to the request of the investigating agency. In the petition, the Addl. Public Prosecutor has not recorded his own satisfaction regarding the justification for keeping the petitioners in further custody to enable the investigating agency to complete the investigation. The application seems to have been filed in a casual manner by the Addl. Public Prosecutor without even verification of the case records relating to progress of investigation as well as necessity for seeking extension of investigation in the factual scenario. He has not even assigned any reason for the detention of the petitioners beyond the period of one hundred and eighty days. Public Prosecutor without even verification of the case records relating to progress of investigation as well as necessity for seeking extension of investigation in the factual scenario. He has not even assigned any reason for the detention of the petitioners beyond the period of one hundred and eighty days. The learned trial Judge has recorded the submission of the Investigating Officer regarding ascertainment of ownership of the motor cycle and the land from which alleged contraband seized are not yet completed which can possibly be done within two months and accordingly, granted extension. The learned trial Judge seems to have overlooked and ignored the requirements of a valid report of the Public Prosecutor and has failed in the performance of one of his essential duties which has rendered the order of extension vulnerable. Therefore, I am of the view that petition dated 22.07.2017 filed by the learned Addl. Special Public Prosecutor was not in accordance with law as laid down by the Hon’ble Supreme Court in case of Hitendra Vishnu Thakur (supra) and it was an invalid petition and therefore, the grant of extension of further sixty days by the learned trial Judge to complete investigation on such a petition was quite unjustified. Discussion on question no.(iii) There is no dispute that extended period of investigation for another sixty days as per the order dated 22.07.2017 expired on 20.09.2017. On 26.09.2017 the Investigating Officer filed the final prosecution report but cognizance of offence under section 20(b)(ii)(C) of the N.D.P.S. Act was taken on 07.10.2017. It is also not in dispute that no further petition/report as per the proviso to sub-section (4) of section 36–A of the N.D.P.S. Act was filed on 20.09.2017 seeking further extension of the period of completing the investigation indicating the progress of the investigation and the specific reasons for the detention of the petitioners. Therefore, it is apparent that there was detention of the petitioners beyond the extended period for completion of investigation without the final prosecution report being filed. In case of Hitendra Vishnu Thakur (supra), it is held that the Court has no power to remand an accused to custody beyond the prescribed period by Cl. (b) of Section 20 (4) or extended under Cl. In case of Hitendra Vishnu Thakur (supra), it is held that the Court has no power to remand an accused to custody beyond the prescribed period by Cl. (b) of Section 20 (4) or extended under Cl. (bb) of the said section, as the case may be, if the challan is not filed only on the ground that the accusation against the accused is of a serious nature or the offence is grave. When the learned trial Judge extended the period of investigation for another sixty days as per the order dated 22.07.2017, he should have posted the case on 20.09.2017 on which date the said period expired. After 22.07.2017, the next date of the case was 01.08.2017 which was earlier fixed on 19.07.2017 and on 01.08.2017 the petitioners were produced before the learned trial Judge and since prosecution report was not received, they were remanded to judicial custody till 11.08.2017. On 11.08.2017 the petitioners were not produced from custody and since on that day also no prosecution report was received, the case was posted to 24.08.2017 and on 24.08.2017 the case was further posted to 08.09.2017 awaiting prosecution report and on 08.09.2017 the petitioner Lambodar Bag was only produced from custody and the case was adjourned to 22.09.2017 awaiting submission of prosecution report. On 22.09.2017 both the petitioners were produced and on that day also no prosecution report was received and the case was posted to 07.10.2017. Therefore, the case was neither posted to 20.09.2017 on which date the extended period of completion of investigation as was directed by the learned trial Judge on 22.07.2017 expired nor any further petition/report as per the proviso to sub-section (4) of section 36–A of the N.D.P.S. Act was filed by the Public Prosecutor. Since neither any prosecution report was filed on 20.09.2017 nor any further report was filed by the Public Prosecutor seeking further extension of the period of completing the investigation, the remand order passed by the learned trial Judge on 22.09.2017 is illegal and unauthorized. The learned trial Judge had no power to remand the petitioners to custody on 22.09.2017. Discussion on question no. (iv) In the case of Union of India -Vrs.- Thamisharusi and Ors. The learned trial Judge had no power to remand the petitioners to custody on 22.09.2017. Discussion on question no. (iv) In the case of Union of India -Vrs.- Thamisharusi and Ors. reported in (1995) 9 Orissa Criminal Reports (SC) 1 where a question of law came up for decision as to whether the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for the commission of an offence under N.D.P.S. Act to claim release on bail on an expiry of the total period specified therein if the charge sheet is not filed within that period, it was held that section 37 of the N.D.P.S. Act does not exclude the application of the proviso to sub-section (2) of section 167 of the Code, even in respect of persons who are accused for offences under N.D.P.S. Act. Coming to the question as to whether the learned trial Judge was duty bound to inform the petitioners about their right of being released on bail in view of the proviso to subsection (2) of section 167 of Cr.P.C., in case of Hussainara Khatoon -Vrs.- Home Secretary reported in A.I.R. 1979 S.C. 1377, it was held that when an undertrial prisoner is produced before a Magistrate and he has been in detention for ninety days or sixty days as the case may be, the Magistrate must before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. It was further held that the State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of section 167 of Cr.P.C. and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him. In case of Hitendra Vishnu Thakur (supra), it is held that there is an obligation which is cast on the Court and that is to inform the accused of his right being released on bail and to enable him to make an application in that behalf. In case of Hitendra Vishnu Thakur (supra), it is held that there is an obligation which is cast on the Court and that is to inform the accused of his right being released on bail and to enable him to make an application in that behalf. Even though the extended period of completion of investigation expired on 20.09.2017 and no prosecution report was filed, on 22.09.2017 when both the petitioners were produced, the learned trial Judge has not informed them of their right being released on bail on account of non-submission of prosecution report so as to enable them to make an application for bail. Before passing an order of remand on that day, it was obligatory on the part of the learned trial Judge to point out the petitioners of their entitlement of being released on bail. Therefore, it is clear that the learned trial Judge has not followed the ratio laid down in case of Hussainara Khatoon (supra) and Hitendra Vishnu Thakur (supra). On 22.09.2017 the order of remand was passed in the absence of the representing counsels of the petitioners. Merely because the petitioners were represented by their counsels, the Court should not have failed in its obligation which is cast on it. Discussion on question no. (v) Coming to the extinguishment of the right of the petitioners of being released on bail since petition for bail was not filed before the trial Judge during the default period as contended by the learned counsel for the State, it appears that section 167 Cr.P.C. has been enacted with the sprit that if a person is arrested by the police then he should be produced before the Magistrate with all promptitude. Section 167(2) of Cr.P.C. prescribes that an accused can be detained by the Magistrate before whom he is forwarded either in judicial custody or on the prayer on the investigating officer in police custody from time to time for a term not exceeding fifteen days in the whole. Remand orders is to be passed by the Magistrate on proper application of mind and not mechanically. Remand orders is to be passed by the Magistrate on proper application of mind and not mechanically. In view of the proviso (a)(i) to sub-section (2) of section 167 of the Code, a Magistrate has no power to detain an accused in custody for a total period exceeding ninety days from the first date of remand, where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years. By virtue Orissa Act 11 of 1997 which came into force w.e.f. 20.11.1997, the words “ninety days” in section 167 of the Code has been substituted with “one hundred twenty days”. Similarly in view of the proviso (a)(ii) to sub-section (2) of section 167 of the Code, the Magistrate has no power to detain as accused in custody for a total period exceeding sixty days, where investigation relates to any other offence. Sub-section (2)(a) of section 167 of the Code further provides that on the expiry of period of ninety days (for Orissa “one hundred twenty days”) or sixty days, the accused shall be released on bail by the Magistrate if he is prepared to furnish bail and accordingly furnishes bail bond. The total period of ninety days (for Orissa “one hundred twenty days”) under clause (i) and the total period of sixty days under clause (ii) of the proviso (a) to sub-section (2) of section 167 of Cr.P.C. have to be calculated from the date of remand and not from the date of arrest. In view of sub-section (4) of section 36-A of the N.D.P.S. Act, since the offence involves commercial quantity, the reference in sub-section (2) of section 167 of Cr.P.C. thereof to “ninety days” shall be construed as reference to “one hundred eighty days”. In case of Hitendra Vishnu Thakur (supra), it is held that the proviso to sub-section (2) of section 167 of Cr.P.C. fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail. In case of Hitendra Vishnu Thakur (supra), it is held that the proviso to sub-section (2) of section 167 of Cr.P.C. fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail. In case of Shardulbhai Laxmanbhai Pancholi -Vrs.- State of Gujurat reported in 1990 (3) Crimes 480, a Full Bench of Gujarat High Court held that the accused has no absolute right to be released on bail on account of failure on the part of the police to submit charge sheet within the prescribed period inasmuch as he has to file his bail application after the expiry of period prescribed by the proviso and before filing of the charge sheet. If the charge sheet is filed after the stipulated period but before the filing of the bail application by the accused then he cannot claim benefit of the proviso. In case of State of M.P. -Vrs.- Rustam reported in (1996) 11 Orissa Criminal Reports (SC) 167, it was held that right to compulsive bail under the proviso to section 167(2) of Cr.P.C. does not survive after filing of his challan. In case of Sanjay Dutt -Vrs.- State reported in 1994 Supreme Court Cases (Criminal) 1443, a five-Judge Bench of the Hon’ble Supreme Court held that the indefeasible right accruing to the accused is enforceable only prior to the filing of challan and it does not survive or remain enforceable on the challan being file, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by section 167 but different provisions of Code of Criminal Procedure. If that right had accrued to the accused but it remains unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because section 167 Cr.P.C. ceases to apply. In case of Dr. If that right had accrued to the accused but it remains unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because section 167 Cr.P.C. ceases to apply. In case of Dr. Bipin Shantilal Panchal -Vrs.- State of Gujarat reported in (1996) 10 Orissa Criminal Reports (SC) 265 where a question was raised as to whether the accused who was entitled to be released on bail under proviso to sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, relying upon the decision of the Constitution Bench in case of Sanjay Dutt (supra), it is held as follows:- “4.....Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge sheet, as pointed out in Aslam Babalal Desai -Vrs.- State of Maharashtra: 1992 Criminal Law Journal 3712.” In case of Udaya Mohanlal Acharya -Vrs.- State of Maharashtra reported in 2001 (II) Orissa Law Reviews 290, it is held that on the expiry of period of ninety days or sixty days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. It is further held that on expiry of the period specified in para (a) of the 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. It is further held that if an accused is entitled to be released on bail by application of proviso to subsection (2) of section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration, a charge sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. In case of Pragyna Singh Thakur -Vrs.- State of Maharashtra reported in (2011) 10 Supreme Court Cases 445, it is held that the right under section 167(2) of Code of Criminal Procedure to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. In a recent decision in case of Rakesh Kumar Paul -Vrs.- State of Assam reported in (2017) 68 Orissa Criminal Reports (SC) 1, it is held that in the matter of personal liberty, the Court cannot and should not be too technical and must lean in favour of personal liberty. In a recent decision in case of Rakesh Kumar Paul -Vrs.- State of Assam reported in (2017) 68 Orissa Criminal Reports (SC) 1, it is held that in the matter of personal liberty, the Court cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned Court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail. It was further held that in the matters concerning personal liberty and penal statutes, it is the obligation of the Court to inform the accused that he or she is entitled to free legal assistance as a matter of right. The Hon’ble Court rejected the contention raised that since charge sheet having been filed against the petitioner, he is not entitled to ‘default bail’ and further held that the Court is concerned with the interregnum period between 4th January 2017 and 24th January 2017 when no charge sheet has been filed, during which period he had availed of his indefeasible right of ‘default bail’. It would have been another mater all together if the petitioner had not applied for default bail for whatever reason during this interregnum. It is further held that when the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right, the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. Keeping in view that ratio laid down in the aforesaid decisions and coming to the case in hand, I am of the humble view that even though the petitioners have not applied for bail during the default period when prosecution report was not filed even after extended period for completion of investigation as was granted by the learned trial Judge but since the learned trial Judge has not informed the petitioners of their right being released on bail on account of non-submission of prosecution report, no fault can be found with the petitioners for not making such application for bail during the default period. Had the learned trial Judge informed the petitioners of their right and the petitioners on being so informed, failed to file an application for release on bail on account of the default by the investigating agency in the completion of investigation within the extended period, after the prosecution report is filed, they would have lost their valuable right. In the factual scenario, the petitioners cannot be stated to have voluntarily given up their indefeasible right for default bail. 9. Even though the petitioners have not applied for bail before the learned trial Judge on the ground of not being noticed to have their say on the invalid petition filed by the Addl. Public Prosecutor on 22.07.2017 but on some other grounds, they are not debarred from taking such ground before this Court. As held in case of Rakesh Kumar Paul, in the matter of personal liberty, the Court should not be too technical and must lean in favour of personal liberty. An application for bail in the High Court is not an application for review of the order of the Court below. Grounds not taken in the Court below can be taken in the bail petition in the higher Court and even non-taking of grounds in the bail petition will not deprive the counsel for the accused in raising such grounds during hearing of the bail application. Even if a ground for grant of bail is not taken in the bail petition and not argued by the counsel for the accused, the Court is not deprived of releasing the accused on bail on such ground if it is legally sustainable. Strict rules of pleadings are not applicable in bail petition. In view of the foregoing discussions, since the learned trial Judge has committed illegality in granting extension for a further period of sixty days for completing investigation as per order dated 22.07.2017 on the petition filed by the Addl. Public Prosecutor without issuing any notice to the petitioners to have their say and the petition dated 22.07.2017 filed by the learned Addl. Public Prosecutor without issuing any notice to the petitioners to have their say and the petition dated 22.07.2017 filed by the learned Addl. Special Public Prosecutor was not in accordance with law and the remand order of the petitioners passed by the learned trial Judge on 22.09.2017 is illegal and unauthorized and the petitioners were not informed of their right being released on bail on account of non-submission of prosecution report so as to enable them to make an application for bail, I am of the view that the petitioners are entitled to be released on bail. The grounds on which I am granting bail to the petitioners, I am of the humble view that it is not necessary to consider the gravity of the offence, the merits of the prosecution case or the bar under section 37 of the N.D.P.S. Act. Accordingly, both the bail applications are allowed. Let the petitioners be released on bail in the aforesaid case on furnishing bail bond of Rs.2,00,000.00 (rupees two lakhs only) each with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions as the learned Court may deem just and proper with the further condition that the petitioners shall appear before the learned trial Court on each date when the case would be posted for trial. Violation of any terms and conditions shall entail cancellation of bail. Lower Court records be sent back in sealed cover to the learned trial Court forthwith. Applications allowed.