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2020 DIGILAW 557 (AP)

Sujith Kumar Das v. State of Andhra Pradesh

2020-09-03

LALITHA KANNEGANTI

body2020
ORDER : Lalitha Kanneganti, J. 1. The criminal petition is filed under Sections 437 & 439 of Cr.P.C. seeking regular bail to the petitioner/A-4 in connection with F. No. DRI/HZU/VRU/48/ENQ-01(INT-01)/2020 dated 26.02.2020 on the file of Directorate of Revenue Intelligence, Regional Unit, Visakhapatnam for the offence punishable under Sections 8(c), 20 and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act"). 2. The case of the prosecution is that on 26.02.2020 basing on a specific intelligence input that Ganja is being illicitly transported in TATA goods carriage bearing No. OD 02 BD 4155 by the petitioner and other persons, which is coming from Narsipatnam side and going towards Orissa and some persons are also piloting the said vehicle in TATA Indigo Car bearing No. OD 02 U 7123, the officers of DRI mounted surveillance at NAD Junction, stopped the Indigo Car and detained the inmates. They also stopped TATA goods carriage bearing No. OD 02 BD 4155 and found the petitioner and 2 others and on enquiry, they admitted that Ganja was loaded in the said vehicle. On verification, they found total 1638.68 KGs of Ganja. 3. Heard Sri N. Ashwani Kumar, learned counsel for the petitioner and the learned Public Prosecutor for respondent-State. 4. Learned counsel for the petitioner would submit that the petitioner is the driver of Tata Indigo Car, which was owned by his father and the petitioner has no knowledge about the illegal activity committed by the accused. The petitioner does not belong either to the area or the persons alleged offence and there is no remote scope that the petitioner in any way interfere either with the investigation or with the witnesses. He further submits that the petitioner is in judicial custody from 27.02.2020 and more than 150 days elapsed, as such he is entitled for default bail. In this connection, he relied upon the order of this Court in Crl. R. No. 3124 of 2020 dated 20.06.2020. Learned counsel submits that in the said order this Court taking into consideration several judgments of the Hon'ble Apex Court held that if the charge sheet is not filed within the period contemplated under Section 167 of Cr.P.C., the accused is entitled for default bail. 5. Learned counsel for petitioner relied on the judgment of the Apex Court in Rakesh Kumar Paul Vs. 5. Learned counsel for petitioner relied on the judgment of the Apex Court in Rakesh Kumar Paul Vs. State of Assam, (2017) 15 SCC 67 held that keeping the application for default bail pending for some time to enable filing of charge sheet was strongly discouraged and no subterfuge should be resorted to defeat the indefeasible right of the accused. He also relied on the judgment of the Hon'ble Apex Court in Nikesh Tarachand Shah Vs. Union of India and another, AIR 2017 SC 550, and submitted that the provision of the NDPS Act laying twin condition is in pari materia with the provisions of Prevention of Money Laundering Act, 2002 and the Hon'ble Apex Court has held that the twin conditions are unconstitutional. 6. Learned counsel for petitioner also relied on the judgment of Hon'ble Apex Court in Sujit Tiwari Vs. State of Gujarat and State of Kerala Vs. Rajesh (Criminal Appeal Nos. 154-157 of 2020) dated 24.01.2020). Learned counsel submits that there is no strait-jacket formula that in each and every case if the contraband seized is of commercial quantity, bail cannot be granted. 7. Learned counsel for petitioner mainly contends that even if the contraband seized is of commercial quantity, still the bail application has to be considered in the light of Section 37 of NDPS Act, according to which, the burden lies on the Public Prosecutor to place on record the material to show that the accused is a habitual offender, if he is enlarged on bail, he is likely to commit the offence and other reasonable evidence connected the accused to the commission of the crime. Unless and until such material is placed before the Court, the Public Prosecutor cannot oppose the bail application on the sole ground that the contraband seized is of commercial quantity. 8. On the other hand, learned Public Prosecutor would submit that the petitioner earlier filed Crl. M.P. No. 735 of 2020 on the file of Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge-cum-Special Judge for trial of offence under NDPS Act, Visakhapatnam, which was dismissed by order dated 20.06.2020 holding that the quantity of Ganja seized is commercial quantity and the investigation is still in progress. 9. Before adverting to the various arguments advanced on behalf of either parties. It is appropriate to have a look at the objects of the Act. 10. 9. Before adverting to the various arguments advanced on behalf of either parties. It is appropriate to have a look at the objects of the Act. 10. The objects of the NDPS Act are- "The statutory control over narcotic drugs is exercised in India through a number of Central and State enactments. The Principal Central Acts, namely, the Opium Act, 1857, The Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level many deficiencies in the existing laws have come to notice." "An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith." 11. The NDPS Act is amended to implement United Nations' 1988 Covenant mandating its Member-Nations to recognize "the importance of strengthening and enhancing effective legal means for international cooperation in criminal matters for suppressing the international criminal activities of illicit traffic" in narcotic drugs. The Covenant's Preamble expresses United Nations' serious concern that "children are used in many parts of the world as an illicit drug consumers' market" and that the traffic in drug "pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of the society". The NDPS Act being a purposive enactment to curb the menace of narcotic and psychotropic substances, a special provision is incorporated to deal with grant of bail. While dealing with the bail petitions under the NDPS Act, the courts have to face the task of balancing individual freedom with social interest. 12. Now, it is appropriate to look at the language employed in Section 37 of NDPS Act, which reads thus: 37. While dealing with the bail petitions under the NDPS Act, the courts have to face the task of balancing individual freedom with social interest. 12. Now, it is appropriate to look at the language employed in Section 37 of NDPS Act, which reads thus: 37. Offences to be cognizable and non-bailable-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 13. The first and foremost contention of learned counsel for the petitioners is that Section 37 of NDPS Act is in pari materia with Section 45 of Prevention of Money Laundering Act, 2002 (for brevity "PML Act"). Section 45 of PML Act has been declared unconstitutional by the Hon'ble Apex Court and to buttress his contention, he relied upon the judgment of Hon'ble Apex Court in Nikesh Tarachand Shah Vs. Union of India and another, AIR 2017 SC 550, wherein the issue that fell for consideration before the Apex Court is constitutionality of Section 45 of PML Act. Union of India and another, AIR 2017 SC 550, wherein the issue that fell for consideration before the Apex Court is constitutionality of Section 45 of PML Act. Section 45(1) of PML Act that imposes two conditions for grant of bail, where a person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail and the conditions are that the Public Prosecutor must be given an opportunity to oppose the application for release on bail and the Court must be satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. The Hon'ble Apex Court taking into consideration various contentions advanced has upheld Section 45(1) of PML Act insofar as it imposes two further conditions for release on bail were declared to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. 14. The Hon'ble Apex Court observed that: 35. Another conundrum that arises is that, unlike the Terrorist and Disruptive Activities (Prevention) Act, 1987, there is no provision in the 2002 Act which excludes grant of anticipatory bail. Anticipatory bail can be granted in circumstances set out in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 (See paragraphs 109, 112 and 117). Thus, anticipatory bail may be granted to a person who is prosecuted for the offence of money laundering together with an offence under Part A of the Schedule, which may last throughout the trial. Obviously for grant of such bail, Section 45 does not need to be satisfied, as only a person arrested under Section 19 of the Act can only be released on bail after satisfying the conditions of Section 45. But insofar as pre-arrest bail is concerned, Section 45 does not apply on its own terms. This, again, would lead to an extremely anomalous situation. If pre-arrest bail is granted to Mr. X, which ensures throughout the trial, for an offence under Part A of the Schedule and Section 4 of the 2002 Act, such person will be out on bail without his having satisfied the twin conditions of Section 45. However, if in an identical situation, Mr. If pre-arrest bail is granted to Mr. X, which ensures throughout the trial, for an offence under Part A of the Schedule and Section 4 of the 2002 Act, such person will be out on bail without his having satisfied the twin conditions of Section 45. However, if in an identical situation, Mr. Y is prosecuted for the same offences, but happens to be arrested, and then applies for bail, the twin conditions of Section 45 will have first to be met. This again leads to an extremely anomalous situation showing that Section 45 leads to manifestly arbitrary and unjust results and would, therefore, violate Articles 14 and 21 of the Constitution. 36. However, the learned Attorney General has argued before us that we must uphold Section 45 as it is part of a complete code under the 2002 Act. According to him, Section 45, when read with Sections 3 and 4, would necessarily lead to the conclusion that the source of the proceeds of crime, being the scheduled offence, and the money laundering offence, would have to be tried together, and the nexus that is provided is because the source of money laundering being as important as money laundering itself, conditions under Section 45 would have to be applied. We are afraid that, for all the reasons given by us earlier in this judgment, we are unable to agree. The learned Attorney General asked us to read down Section 45 in that when the Court is satisfied that there are reasonable grounds for believing that a person is not guilty of an offence, it only meant that the Court must prima facie come to such a conclusion. Secondly, the fact that he is not likely to commit "any offence" while on bail would only be restricted to any offence of a like nature. Again, we are afraid that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove. Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. Again, we are afraid that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove. Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. For this purpose, he referred us to Amarmani Tripathi (supra) at para 18, in which it was stated that, for grant of bail, the Court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence being repeated has also be seen. It is obvious that the twin conditions set down in Section 45 are a much higher threshold bar than any of the conditions laid down in paragraph 18 of the aforesaid judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the various factors set out in paragraph 18 of the judgment are to be looked at. Under Section 45, the Court must be satisfied that there are reasonable grounds to believe that the person is not guilty of such offence and that he is not likely to commit any offence while on bail. 15. As rightly pointed out by the learned counsel for the petitioner, the Hon'ble Apex Court while dealing with Section 45 of PML Act 2002 has not ruled in favour of the twin conditions laid down in Section 45 of PML Act. No doubt, if Section 37 of NDPS Act is interpreted as per the language employed in the section, it gives unfettered discretion to the Public Prosecutor and complying of twin conditions certainly becomes impossible task. 16. In Ranjitsing Brahmajeetsingh Sharma Vs. State of Maharashtra, (2004) 5 SCC 294, the Apex Court while considering Section 21 of Maharashtra Control of Organized Crime Act, 1999 where there are twin conditions pari materia with NDPS Act for grant of bail has held thus: "38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence." The Hon'ble Apex Court observed that while considering the bail petition despite the language employed in the section, court must develop a delicate balance between judgment of acquittal, conviction and bail and the provision should be construed reasonable. With regard to the second condition that the accused is not likely to commit the offence in future, it was observed that the court has to look into the antecedents of the accused as the court cannot predict his future conduct. 17. In Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569 , the Hon'ble Apex Court has upheld Section 20(8) of TADA Act, 1987 which has the same twin conditions to be applied to offences under TADA Act. The Hon'ble Apex Court observed thus: "349. The conditions imposed under Section 20(8)(b), as rightly pointed out by the Additional Solicitor General, are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section. Similar to the conditions in clause (b) of sub-section (8), there are provisions in various other enactments such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the Customs Act to the effect that any authorized or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that "there are grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution. It was upheld on the ground that offences under TADA are most heinous and there is a compelling state interest in tackling such crimes, by way of which the vice of terrorism is sought to be tackled. 18. Coming back to the case on hand, Section 37 of NDPS Act mandates that the Court while granting bail has to be satisfied that there are reasonable grounds for believing that the person seeking bail is not guilty of such offence and application of conditions mentioned in Section 37(1)(b)(ii) be applicable only if the Public Prosecutor opposes the application. 18. Coming back to the case on hand, Section 37 of NDPS Act mandates that the Court while granting bail has to be satisfied that there are reasonable grounds for believing that the person seeking bail is not guilty of such offence and application of conditions mentioned in Section 37(1)(b)(ii) be applicable only if the Public Prosecutor opposes the application. As per the language employed in the section, if the Public Prosecutor does not oppose the application, the Court need not apply its mind for arriving at conclusion despite the fact that the quantity is a commercial quantity. Secondly the provision gives unlimited discretion to the Public Prosecutor besides restricting the power of the Court to freely decide the question of bail to the accused. The Court is expected to be prima facie satisfied that the accused is not guilty of the offence, which is not possible to determine by the Court at the stage of bail and any observation of such kind poses a threat of prejudicing the case of accused before the trial Court. Further, as per the plain reading of the language employed in the section, the Court should be satisfied that there is no likelihood of accused committing any offence while on bail. Satisfying this condition or recording this condition appears to be impossible and impracticable as committing of an offence depends upon the mindset of the accused, mens rea and the Court at the stage of bail cannot assess and decide whether the accused is going to commit any offence or not in future. It is highly impossible for the Court to arrive at any of the conclusions that are supposed to be recorded at the time of granting bail by virtue of the conditions laid down under Section 37(1)(b)(ii) of the NDPS Act. 19. The Hon'ble Apex Court in several cases has laid down the parameters how bails under the NDPS Act has to be dealt with and further interpreted the language employed in the provision. 20. In Satpal Singh Vs. State of Punjab, 2018 (13) SCC 813 the Apex Court has clearly observed that liberal approach in matters of bail under NDPS Act is uncalled for and held thus: "4. 20. In Satpal Singh Vs. State of Punjab, 2018 (13) SCC 813 the Apex Court has clearly observed that liberal approach in matters of bail under NDPS Act is uncalled for and held thus: "4. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C. or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. 21. Further in Union of India Vs. Ram Samujh and Ors., 1999 (9) SCC 429 the Apex Court held thus: "7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary, Union Territory of Goa, [1990] 1 SCC 95 as under: "With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine," 8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that accused is not guilty of such offence; and (ii) that he is not likely to commit while on are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended. 22. In another case in Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798 the Hon'ble Apex Court has interpreted the word reasonable grounds as follows: "The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'." 23. In the latest judgment of State of Kerala Vs. Rajesh in Criminal Appeal Nos. 154-157 of 2020 dated 24.01.2020, the Apex Court considered the application moved by the State of Kerala against grant of regular bail to the accused without noticing the mandate of Section 37(1)(b)(ii) of NDPS Act. The Apex Court held thus: 18. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. 20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence." Accordingly, the Apex Court set aside the order passed by the High Court releasing the accused on bail. 24. In light of the law laid down by the apex court in the above judgments, the Court while considering the application for bail with reference to Section 37 of NDPS Act is not called upon to record a finding of 'not guilty'. It is for the limited purpose and is confined to the question of releasing the accused on bail and the Court is called upon to see if there are reasonable grounds for believing that the accused is guilty and record its satisfaction about existence of such ground. But the Court shall not consider the matter as if it is pronouncing the judgment of acquittal and recording finding of 'not guilty'. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence basing on the antecedents of the accused. Accordingly, the first and foremost contention of the petitioner is answered. 25. The next contention of learned counsel for petitioners is the prosecution failed to file the charge sheet within 180 days and they are entitled for default bail. Before dealing with this it is appropriate to look at Section 167(2) of Cr.P.C., and Section 36-A of the NDPS Act. 26. Section 167 (2) Cr.P.C. reads thus: 167. Procedure when investigation cannot be completed in twenty four hours. Before dealing with this it is appropriate to look at Section 167(2) of Cr.P.C., and Section 36-A of the NDPS Act. 26. Section 167 (2) Cr.P.C. reads thus: 167. Procedure when investigation cannot be completed in twenty four hours. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (iii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter:] 27. Section 36 (A)(4) of the NDPS Act reads thus: 36A. Offences triable by Special Courts. Section 36 (A)(4) of the NDPS Act reads thus: 36A. Offences triable by Special Courts. (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (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. 28. Under NDPS Act, there is a special provision as per Section 36A (4) in respect of persons accused of an offence punishable under Section 19 or 24 or 27-A or for the offences invoking commercial quantity, the reference in sub section (2) of Section 167 of Cr.P.C., thereof to "ninety days" where they occur shall be construed as reference to one hundred and eighty days. If the investigation is not completed within 180 days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor. 29. The Hon'ble apex court has dealt with Section 167(2) vis-a-vis Section 36A (4) of the NDPS Act, In Rajnikant Jivanlal Vs. Intelligence Officer, Narcotic Control Bureau AIR 1979 SC 1377 , the Hon'ble Apex Court held that an order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and Court's discretion cannot supersede. 30. In Bipin Shantilal Panchal (Dr) Vs. State of Gujarat, (1996) 1 SCC 718 , it was clarified by the Hon'ble Apex Court that although a default in filing the charge sheet would confer an indefeasible right of the accused to be admitted to bail. It is a legislative command and Court's discretion cannot supersede. 30. In Bipin Shantilal Panchal (Dr) Vs. State of Gujarat, (1996) 1 SCC 718 , it was clarified by the Hon'ble Apex Court that although a default in filing the charge sheet would confer an indefeasible right of the accused to be admitted to bail. However, if the accused failed 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 has been filed. 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 re-arrested on the mere filing of the charge sheet. 31. In Hitendra Vishnu Thakur Vs. State of Maharashtra, (1994) 4 SCC 602 , while dealing with a case under Section 20 of the TADA Act, the Hon'ble Apex Court held that when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (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 true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice 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. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition for issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. 32. In Sanjay Dutt Vs. State through CBI, Bombay (II), (1994) 5 SCC 410 , the Hon'ble Apex Court held that the requirement of such notice to the accused before granting the extension of time for completing the investigation is not merely a written notice to the accused, rather production of the accused at the relevant time in the court informing him that the question of extension of the period for completing the investigation is alone sufficient for the purpose. 33. In Sanjay Kumar Kedia Vs. Narcotic Control Bureau, (2009) 17 SCC 631 , the jurisprudence on the subject further evolved when the Hon'ble Apex Court relied upon the law laid in the case of Hitendra Vishnu case (supra) while holding that the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA, was pari materia with the proviso to sub-section (4) of Section 36-A of NDPS Act. 34. In view of the specific provision under the NDPS Act, the judgments relied upon by the learned counsel for petitioner passed in Crl.P. No. 3124 of 2019 is not applicable to the present case for the reason that NDPS Act being a special enactment, is governed by Section 36-A along with the provisions of Cr.P.C. and as per the same the time for filing charge sheet can be extended upto one year subject to the procedure contemplated under the provision. If the petitioner is aggrieved with non-compliance of Section 36 of NDPS Act, he can approach the trial Court and file an appropriate application. Further, nothing is placed before this Court whether the prosecution has filed any application seeking extension of time. Even according to the petitioner himself, only 150 days are elapsed and still 30 days time is there for the prosecution to file the charge sheet and can also seek further extension of 180 days. Further, nothing is placed before this Court whether the prosecution has filed any application seeking extension of time. Even according to the petitioner himself, only 150 days are elapsed and still 30 days time is there for the prosecution to file the charge sheet and can also seek further extension of 180 days. On the facts of it, this Court is of the view that petitioner is not entitled for default bail. 35. Having discussed the provisions of NDPS Act, ultimately the judicial effort is to give effect and uphold the language of Section 37 of NDPS Act, as larger interest of society has to be taken into consideration. There is reasonable material on record by way of mediator-nama, remand report to connect the accused to the crime. The contraband that is seized is the huge quantity of 1638.680 kgs and the accused A4/Driver is also aware of the contraband that is carried in the car. This Court is prima facie satisfied that there are reasonable grounds to connect the accused to the crime. Hence this Court is not recording any finding on the second limb of the section with regard to antecedents of the accused. In any view of the matter this Court feels that this is not a fit case for grant of bail. However, this Court emphasizes that in the NDPS cases the prosecution shall file the relevant material before the Court with regard to the antecedents of the accused and the material connecting the accused with the crime instead of merely saying that the contraband seized is of commercial quantity. It is settled law that in spite of the fact that the contraband seized is of commercial quantity the accused is entitled for bail, if the twin conditions are satisfied. 36. Accordingly, the criminal petition is dismissed. If the petitioner is aggrieved about non-compliance of Section 36-A of NDPS Act and entitled for default bail, he is at liberty to approach the trial Court by filing appropriate application. As a sequel, all the pending miscellaneous applications are closed.