ORDER : This petition seeking bail under Section 439 of Cr.P.C. is presented by accused No.2 in Special CC No.1197/2019 pending on the file of Special Judge for NDPS cases (XXXIII Addl. City Civil and Sessions Judge), Bengaluru. 2. The point involved in this case is, whether prayer for grant of bail under Section 167(2) of Cr.P.C. can be considered after the learned Trial Judge takes cognizance of offences alleged in the complaint filed under Section 36A of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short). 3. Heard Mr.Hashmath Pasha, learned Senior Advocate for the petitioner and Mr. Madhukar Deshpande learned Senior CGSC for the Narcotic Control Board (‘NCB’ for short). 4. Briefly stated the facts of the case are, petitioner is accused of several offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short). He was arrested on 3rd May 2019 and produced before the Special Judge on 4th May 2019. Earlier he had moved a bail petition (Crl.P No.4448/2019) and the same has been dismissed by this Court on 11th October 2019. 5. This second petition is filed pleading inter alia that on completion of investigation, NCB have filed complaint against petitioner and three others before the Special Court for offences punishable under Section 8(c), 8A read with Sections 22, 23, 25, 27A, 27B, 29, 32B(a) of the NDPS Act and the case has been registered on the file of learned Special Judge. Thus, this petition has been presented after the learned Special Judge has taken cognizance of offences. 6. It is relevant to record that when the petition was taken up for hearing, Mr. Hashmath Pasha, learned Senior Advocate submitted that this petition may be considered for grant of bail only under Section 167(2) of Cr.P.C. Accordingly, this petition is considered under Section 167(2) of Cr.P.C and not on merits. 7. In support of this petition, learned Senior Advocate made following submissions: that complaint filed by the NCB is without completion of Investigation and therefore, it is not a complaint akin to charge sheet under Section 173 of Cr.P.C.; that under Section 36A of the NDPS Act, an Officer of the Central Government is empowered to file a complaint before the Special Court after completion of investigation. In paragraphs No.114 to 117 of the complaint filed by the NCB, it is stated that the investigation of the case is still pending and the complaint has been filed only to defeat petitioner’s right to obtain bail under Section 167(2) of Cr.P.C.; that maximum period for investigation under NDPS Act is 180 days. However, the Special Court can extend the period up to one year upon a Report of the Public Prosecutor. In the instant case, 180 days has expired on 2nd November 2019 and the period of one year has also expired on 2nd May 2020. No Report by the Public Prosecutor has been filed before the learned Special Judge seeking extension of time. 8. Mr. Deshpande, opposing the petition, made following submissions: that NCB has filed the complaint on 25th October 2019 within the statutory period of 180 days; that the learned Special Judge has taken cognizance of the offences on 31st October 2019 and issued process. The complaint has been registered as CC No.1197/2019 on 2nd November 2019. Petitioner has not challenged learned Special Judge’s order taking cognizance of the offences. Therefore, the prayer for grant of bail under Section 167(2) of Cr.P.C. is not maintainable; that the averments contained in paragraphs No.114 to 117 only indicate that NCB is making efforts to arrest accused No.4 who is absconding and to investigate his involvement. 9. I have carefully considered rival contention and perused the records. 10. Undisputed facts of the case are, petitioner was arrested on 3rd May 2019 and NCB has filed its complaint dated 25th October 2019. The record of proceedings of the Special Court disclose that the learned Special Judge has taken cognizance of offences on 31st October 2019 and issued process. Thereafter, this petition has been filed on 22nd November 2019. In paragraph No.20 of the petition, it is averred that ‘on completion of investigation’, NCB has filed complaint against petitioner and three others before the learned Special Judge. It was contended by Mr.Hashmath Pasha that what is filed by the NCB cannot be construed as a complaint in law under Section 36A of the NDPS Act because NCB has stated in its complaint that investigation of the case is still pending on several points. It was contended by Mr.Hashmath Pasha that what is filed by the NCB cannot be construed as a complaint in law under Section 36A of the NDPS Act because NCB has stated in its complaint that investigation of the case is still pending on several points. He also adverted to the Statement of Objections filed on behalf of NCB and pointed out that NCB has reiterated its stand that investigation is still pending on various points and bail is opposed on the ground that, if released, petitioner will remove the evidence which are to be collected. He argued that ‘Investigation’ as defined under Section 2(h) of the Code of Criminal Procedure includes all proceedings under the Code for collection of evidence. Only after completion of investigation, Police are required to file Report under Section 173 of Cr.P.C. In case of NDPS Act, an Officer of the Central Government is authorized to file a complaint which is parimateria with a charge sheet or challan under Section 173 of Cr.P.C. 11. Thus, in substance learned Senior Advocate’s argument is, investigation is still pending. Therefore, the complaint which is parimateria with the chargesheet is not valid in law. The maximum statutory period of one year has expired on 2nd May 2020. Therefore, petitioner is entitled for default bail. Though this argument appears attractive, the undisputed fact remains that learned Special Judge has taken cognizance of the offences alleged in the said complaint and issued process. The said order has remained unchallenged. 12. A careful perusal of the complaint shows that NCB has summed up the facts and alleged contravention of various provisions of the NDPS Act against the petitioner in the following manner: “104. From the facts enumerated herein above, it transpires that the said accused Shivaraj Urs (A2) possessed manufactured, stored, transport exported outside India and attempted to commit offence of illicit trafficking of Ketamine and entered into conspiracy to manufacture and illegal trafficking of Ketamine and attempted to hurt the NCB team grievously and finally flee from the spot, financing directly for the manufacture of Ketamine, used his premise for manufacturing the Ketamine thereby contravening the provisions of section 8 (c), 8A read with section 22, 23, 25, 27A, 27B, 29 & 32B(a) of the NDPS Act, 1985 in connivance of his associates in his crime.” 13. So far as the contention of the learned Senior Advocate with regard to averments contained in paragraph No.114 of NCB’s complaint is concerned, it is to be noted that what is stated therein is, investigation is pending on several points and more persons are likely to be apprehended. Mr.Deshpande’s submission on this paragraph that accused No.4 is absconding and he is likely to be apprehended, cannot be brushed aside. Suffice to record that so far as petitioner is concerned, NCB has summed up its case in paragraph No.104 and leveled allegations of contravention of various provisions of the NDPS Act. 14. Mr. Hashmath Pasha, relying on paragraph No. 116 in Directorate of Enforcement Vs. Deepak Mahajan and another (1994) 3 SCC 440 argued that a Police Officer is required to file a Report under Section 173 of the Code of Criminal Procedure after consummation of investigation and similarly, an authorized Officer is required to file complaint of facts under Special Acts like NDPS Act only after consummation of facts. Since investigation is not complete in the instant case, the complaint filed by NCB cannot be construed as one under Section 36A of NDPS Act. 15. He next relied upon paragraph No.13 in Central Bureau of Investigation, Special Investigation CellI, New Delhi Vs. Anupam J.Kulkarni (1992) 3 SCC 141 . It is held by the Apex Court in the said decision that if the investigation is not completed within the prescribed period, then accused will have to be released on bail as provided under Section 167(2) of Cr.P.C. 16. The ground with regard to completion of investigation is a matter of fact and cannot be decided on oral submissions. Curiously, averment in the petition is contrary to this stand wherein it is clearly stated that NCB has filed the compliant after completion of investigation. Therefore, the authorities in Deepak Mahajan and Anupam J. Kulkarni do not lend any support to petitioner’s case. 17. The next authority relied upon by learned Senior Advocate is Sanjay Kumar Kedia Alias Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau and Another (2009) 17 SCC 631 . In the said case, the point involved is whether extension of time granted to the Investigating Department under Section 36A(4) of NDPS Act was in accordance with law. 17. The next authority relied upon by learned Senior Advocate is Sanjay Kumar Kedia Alias Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau and Another (2009) 17 SCC 631 . In the said case, the point involved is whether extension of time granted to the Investigating Department under Section 36A(4) of NDPS Act was in accordance with law. On the facts of that case, Supreme Court of India has recorded that extension granted did not satisfy the conditions laid down and therefore, struck it down. The question of extension of time is not the issue in this case and therefore the said authority also does not lend support to the petitioner. 18. Relying on paragraph No.40 in Rakesh Kumar Paul Vs. State of Assam (2017) 15 SCC 67 learned Senior Advocate argued that even oral submission seeking default bail under Section 167(2) of Cr.P.C. is maintainable and accordingly his oral submissions and prayer for default bail have been considered. 19. On the other hand, the authority in the case of Dinesh Dalmia Vs. CBI (2007) 8 SCC 770 , relied upon by Mr.Deshpande is aptly applicable to the facts of this case. In the said case, CBI had filed charge sheet against four persons including absconding appellant Dinesh Dalmia. It was alleged that he had entered into the country illegally. He was arrested and produced before a Magistrate and handed over to police custody for investigation. CBI prayed for and obtained an order of remand on the ground that further investigation was pending against him. On expiry of 60 days, Dalmia filed an application seeking statutory bail under Section 167(2) of Cr.P.C. The learned Magistrate rejected the application. On challenge, learned Sessions Judge allowed the application. CBI moved the High Court against the order passed by the learned Sessions Judge. The High Court set-aside the order passed by the learned Sessions Judge. In the result, Dalmia’s application for default bail, failed. In such circumstances, he was before the Apex Court contending inter alia that the charge sheet filed against him and cognizance taken were illegal; and even if charge sheet were legal, appellant’s right under Section 167(2) of Cr.P.C. continued to remain on the facts of the case. 20. The Apex Court, after considering various judgments including Sanjay Dutt Vs. State (1994) 5 SCC 410 has held in Dinesh Dalmia’s case as follows: “38. 20. The Apex Court, after considering various judgments including Sanjay Dutt Vs. State (1994) 5 SCC 410 has held in Dinesh Dalmia’s case as follows: “38. It is a well settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; precognizance and post cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of subsection (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of subsection (8) of Section 173 of the Code. 39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under subsection (2) of Section 173 and further investigation contemplated under subsection (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to subsection (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of subsection (8) of Section 173 of the Code.” (Emphasis supplied) 21. It is relevant to record that in Sanjay Dutt’s case, at the request made by the Additional Solicitor General, the Apex Court has clarified the decision in Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 as follows: “47. Learned Additional Solicitor General, in reply, agreed entirely with the above submission of Shri Sibal and submitted that the principle enunciated by the Division Bench in Hitendra Vishnu Thakur [ (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] must be so read. State of Maharashtra (1994) 4 SCC 602 as follows: “47. Learned Additional Solicitor General, in reply, agreed entirely with the above submission of Shri Sibal and submitted that the principle enunciated by the Division Bench in Hitendra Vishnu Thakur [ (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] must be so read. However, the grievance of the learned Additional Solicitor General is that the diretion for grant of bail by the Division Bench in Hitendra Vishnu Thakur [ (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255], on the facts of that case, is not in consonance with such reading of that decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in the court with the challan. He further submitted that it should be clarified that the direction to grant bail under this provision on this ground alone in Hitendra Vishnu Thakur [ (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] after the challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur [ (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] is being construed by the Designated Courts to mean that the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed. Bail is being claimed by every accused under the TADA Act for this reason alone in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench. 48. Bail is being claimed by every accused under the TADA Act for this reason alone in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench. 48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, 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 the Code of Criminal Procedure. If that right had accrued to the accused but it remained 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 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab [ 1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [ 1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [ (1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ 602] .) 49. This is the nature and extent of the right of the accused to be released on bail under Section 20(4)(bb) of the TADA Act read with Section 167 CrPC in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur [ (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] , accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribe to that view.” (Emphasis supplied) 22. Thus it is settled that once a challan is filed, an application under Section 167(2) of Cr.P.C. for grant of bail does not survive for consideration or remain enforceable. 23. Though Mr.Hashmath Pasha, strenuously contended that NCB’s complaint having been filed without completing investigation, is a defective one, it cannot be gainsaid that the learned Special Judge has already taken cognizance of the offence and trial is in progress. There is no challenge to the validity of compliant nor the order of taking cognizance. Mr.Hashmath Pasha has relied only on Paragraph No.114 of the complaint and one line in the statement of objections filed by the NCB to buttress his point that investigation is pending. There is no challenge to the validity of compliant nor the order of taking cognizance. Mr.Hashmath Pasha has relied only on Paragraph No.114 of the complaint and one line in the statement of objections filed by the NCB to buttress his point that investigation is pending. Copy of NCB’s complaint and documents annexed to the petition runs to about 65 pages. The relied upon documents described in Annexure to the complaint run to 586 pages. If the argument advanced by learned Senior Advocate is accepted, then NCB’s complaint and learned Special Judge’s order taking cognizance will have to be declared illegal and such finding cannot be recorded in this proceedings under Section 439 of Cr.P.C in the absence of specific challenge. 24. In view of above discussion, petitioner’s prayer for grant of default bail must fail and it is accordingly dismissed.